Amended 9/01/99
WHITE MOUNTAIN APACHE
ENVIRONMENTAL CODE
OF THE WHITE MOUNTAIN APACHE TRIBE
CHAPTER ONE
ESTABLISHMENT OF A TRIBAL HAZARDOUS SUBSTANCES EMERGENCY PLAN
SECTION 1.1 PURPOSE
SECTION 1.2 DEFINITIONS
SECTION 1.3RELATIONSHIP TO OTHER LAW
SECTION 1.4 TRIBAL EMERGENCY RESPONSE COMMISSION; POWERS AND DUTIES
SECTION 1.5 COMMISSION; GENERAL POWERS
SECTION 1.6 LOCAL EMERGENCY PLANNING COMMITTEE
SECTION 1.7 COMPREHENSIVE EMERGENCY RESPONSE PLANS
SECTION 1.8 EXTREMELY HAZARDOUS SUBSTANCES
SECTION 1.9 FACILITIES SUBJECT TO EMERGENCY PLANNING; FACILITY
EMERGENCY RESPONSE PLANS
SECTION 1.10 EMERGENCY NOTIFICATION OF REPORTABLE RELEASES
SECTION 1.11 LISTS OF HAZARDOUS CHEMICALS; MATERIAL SAFETY DATA
SHEETS
SECTION 1.12 EMERGENCY AND HAZARDOUS CHEMICAL INVENTORY FORM
SECTION 1.13 TOXIC CHEMICAL RELEASE FORMS; DEFINITIONS
SECTION 1.14 INSPECTION BY TRIBAL FIRE AND RESCUE OR TRIBAL SAFETY
OFFICER
SECTION 1.15 VIOLATION; PENALTIES AND INJUNCTIVE RELIEF
SECTION 1.16 IMMINENT DANGERS
SECTION 1.17 NOT A CONSENT TO BE SUED OR WAIVER OF SOVEREIGN IMMUNITY
SECTION 1.18 SEVERABILITY
CHAPTER TWO
TRIBAL SOLID WASTE PERMITTING PROGRAM
SECTION 2.1 AUTHORITY
SECTION 2.2 SCOPE AND DEFINITIONS
SECTION 2.3 RESTRICTION ON CONSTRUCTION
SECTION 2.4 AUTHORITY OF TRIBAL PERMITTING AUTHORITY
SECTION 2.5 RESERVED
SECTION 2.6 PERMITTING REQUIREMENTS
SECTION 2.7 COMPLIANCE MONITORING AUTHORITY
SECTION 2.8 ENFORCEMENT AUTHORITY
SECTION 2.9 INTERVENTION IN CIVIL PROCEEDINGS
SECTION 2.10 SEVERABILITY
CHAPTER THREE
WATER QUALITY PROTECTION
PREAMBLE
SECTION 3.1 INTRODUCTION, AUTHORITY AND APPLICABILITY
SECTION 3.2 ANTI-DEGRADATION POLICY
SECTION 3.3 IMPLEMENTATION
SECTION 3.4 ENFORCEMENT & PENALTIES
SECTION 3.5 NARRATIVE WATER QUALITY STANDARDS
SECTION 3.6 DESIGNATED USES AND SPECIFIC CRITERIA
SECTION 3.7 WATER QUALITY SAMPLING AND ANALYSIS
SECTION 3.8 DEFINITIONS
APPENDICES
APPENDIX A
APPENDIX B
WHITE MOUNTAIN APACHE
ENVIRONMENTAL CODE OF THE WHITE MOUNTAIN APACHE TRIBE
CHAPTER ONE
ESTABLISHMENT OF A TRIBAL HAZARDOUS SUBSTANCES EMERGENCY PLAN
Note: Chapter One is derived from Ordinance No. 194, which repeals Chapter Seven of the
Government Code, Hazardous Materials Commission.
SECTION 1.1 PURPOSE
This Chapter establishes a Tribal program for improved hazardous chemicals management in
order to maintain a clean, healthy, and safe environment on the Fort Apache Indian Reservation.
This Chapter establishes a Tribal Emergency Response Commission and a Local Emergency
Planning Committee. This Chapter also sets forth facility notification requirements necessary for
the development and implementation of a Tribal Emergency Response Plan. Additionally, the
chapter contains reporting requirements which provide the Tribal community with important
information on the nature, location, and quantity of hazardous chemicals in their community.
SECTION 1.2 DEFINITIONS
In this ordinance, unless otherwise provided:
"Commission" means the Tribal Emergency Response Commission.
"Committee" means a Local Emergency Planning Committee appointed by the Commission.
"Extremely Hazardous Substance", "Hazardous Chemical," and "Toxic Chemical" have the
meaning set forth in Section 329 of Title III, 42 U.S.C. ' 11049, and regulations
promulgated under Title III, currently found at 40 CFR ' 355 et seq.
"Emergency Response Organization" means any tribal, other governmental, or private entity
equipped or created for responding to environmental, health, or other
emergencies. This definition includes, among other things, federal agencies and
their departments, police departments, hospitals, fire departments, emergency
airlift or other medical response entities, and environmental clean-up or
containment crews or companies.
"Facility" means all buildings, equipment, structures, and other stationary items that are
located on a single site or on contiguous or adjacent sites and which are owned
and operated by the same person (or by any person which controls, is controlled
by, or under common control with such person). Facility shall include manmade
structures as well as all natural structures in which chemicals are purposely
placed or removed through human means such that it functions as a containment
structure for human use. For purposes of emergency release notification, the term
includes motor vehicles, rolling stock, and aircraft.
"Person" means any individual, trust, firm, joint stock company, corporation (including
government and tribal corporations), partnership, association, State, Federal
Government or Division or Agency thereof, Tribe, municipality, commission,
political subdivision of a State or Tribe, or interstate body. However, nothing in
this Chapter shall constitute of waiver of Tribal Sovereign Immunity.
"Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the environment
(including the abandonment or discarding of barrels, containers, and other closed
receptacles) of any hazardous chemical, extremely hazardous substance, toxic
chemical, or CERCLA hazardous substance.
"CERCLA Hazardous Substance" means a substance on the list defined in section 101(14) of
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (CERCLA) (P.L. 96-510; 94 Stat. 2767), as amended by SARA, and
regulations promulgated under CERCLA, currently located at 40 CFR ' 302.4.
"SARA" means the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99-499).
"Title III" means Title III of SARA, the federal Emergency Planning and Community Rightto-Know Act of 1986, as amended, found at 42 U.S.C. ' 11001.
"Reservation" means the Fort Apache Indian Reservation
SECTION 1.3 RELATIONSHIP TO OTHER LAW
This article does not:
Affect or modify the obligations or liabilities of any person under federal law.
SECTION 1.4 TRIBAL EMERGENCY RESPONSE COMMISSION; POWERS AND
DUTIES
The Tribal Emergency Response Commission of the White Mountain Apache Tribe shall be
immediately established.
The Commission shall be composed of seven members: the director, manager, or chief, or their
respective designees, of the
Tribal Police Department,
White Mountain Apache Tribal Fire and Rescue - Whiteriver (Tribal Fire and Rescue),
Tribal Emergency Medical Services,
Tribal Safety Department,
Tribal Planning Department (or other named Tribal department with primary responsibility
for environmental protection and natural resources on the Reservation),
Tribal Legal Department, and
the Tribal Health Authority and may include 2 additional persons selected from the categories
listed at Section 1.6B. The Chairperson of the Commission shall be the Chief of
Tribal Fire and Rescue -Whiteriver, unless otherwise appointed by the
Chairperson of the Tribal Council, by and with the advice and consent of the
Tribal Council, from among the members of the Commission. The Chairperson
of the Commission shall also appoint a coordinator for the Commission, who
shall serve as the central contact for the regulated facilities.
Any member of the Commission may be removed by the Tribal Council upon the
recommendation of a quorum of the Commission for inefficiency, neglect of duty,
malfeasance, misfeasance or nonfeasance in office. A commission member may also be
removed voluntarily upon request and approval by a quorum of the Commission and
approval of the Tribal Council. Members of the Commission and the Chairperson of the
Commission shall serve until so removed.
The members of the Commission shall serve without compensation but are eligible for
reimbursement or prepayment for travel and other expenses incurred while fulfilling
duties of the Commission.
The Commission shall meet as often as necessary and may organize itself into such support
committees as necessary to implement this chapter and Title III on this Reservation. The
full Commission shall meet at least semi-annually, but preferably, on a quarterly basis.
The Commission may adopt internal operating rules.
A majority of the Commission shall constitute a quorum to transact business. When a vacancy
occurs in the Commission, the remaining commissioners may exercise all the powers of
the Commission until the vacancy is filled. The Commission shall annually elect a ViceChairperson to act in the absence or disability of the Chairperson or in case of vacancy in
the office of Chairperson.
The Commission may maintain offices and hold regularly scheduled meetings in any place
within the exterior boundaries of the Reservation. Sessions of the Commission shall be
public, with notice provided through local media, including radio or news publication.
The Commission shall develop rules providing for such reasonable notice, including
provisions for emergency or other not regularly scheduled meetings. All proceedings of
the Commission shall be shown on its record, which shall be a public record. The vote of
each member shall be recorded. The Commission shall develop rules for maintaining
such public record.>
The Commission shall administer this chapter and rules adopted under this chapter. The
Commission shall administer Title III on the Reservation and may conduct whatever
activities are necessary to implement this article and Title III on the Reservation. The
Commission possesses all the authority and responsibilities of a Tribal Emergency
Response Commission for purposes of Title III, as set forth in this chapter.
SECTION 1.5 COMMISSION; GENERAL POWERS
The Commission has full power, jurisdiction and authority to:
Formulate and adopt rules, regulations and forms for affecting the purposes of this chapter.
The authority to adopt rules includes establishing:
Procedures for handling public information requests.
Procedures and implementing programs for chemical emergency planning and preparedness.
Community right-to-know program reporting requirements.
Release reporting requirements, which may include reporting requirements in addition to
those required by Federal law.
Means for supervising the activities of a Local Emergency Response Committee (LERC) if
one is established under Section 1.6 of this ordinance.
Procure by contract the temporary or intermittent services of experts or consultants if such
services are to be performed on a part-time or fee-for-services basis and do not
involve the performance of administrative duties.
Prepare and coordinate proposals for federal grants available under Title III and any other
relevant programs. The Commission may accept on behalf of the Tribe any
reimbursement, grant, or gift, that may become available for purposes of this
chapter. The Commission shall transmit any such monies to the Tribal treasurer
for deposit in an account set up for the specific use of the Commission in
fulfilling its duties.
Establish standard operating procedures for hazardous materials management and emergency
response for members of the Commission and any department, enterprise,
business, contractor or private party operating within the exterior boundaries of
the Reservation.
Collect, collate and publish statistical and other information relating to hazardous materials
within the exterior boundaries of the Reservation. The Commission shall prepare
an annual report on hazardous materials management and emergency response
for submission to the Tribal Council by December 31st of the reporting year.
Tribal Fire and Rescue - Whiteriver shall provide computer support to implement
and perform Commission duties and shall maintain a Centralized Hazardous
Materials Database.
Conduct or participate in investigations of causes, origins, and circumstances of hazardous
materials incidents within the exterior boundaries of the Reservation or affecting
the Reservation populace or environment.
Provide training, and seek funding for such training, in the control, containment,
transportation, and handling of hazardous materials and cooperate with other
governments (local, state and federal), institutions and groups to provide and
further such training.
Employ specialized testing services to evaluate evidence and conditions involved in
hazardous materials incidents subject to the availability of funding for said
purposes.
Any action taken by the Commission pursuant to Section 1.5 A1, 2, 3, and 4 shall be taken
only upon approval by the Tribal Council
SECTION 1.6 LOCAL EMERGENCY PLANNING COMMITTEE
The Reservation is designated as one emergency planning district for the purposes of preparing
and implementing an Emergency Response Plan.
The Commission shall appoint members of a Local Emergency Planning Committee for the
district. The Committee may include in addition to the Commission members, one or
more representative from each of the following enumerated groups or organizations:
Elected Tribal officials
Law enforcement, civil defense, fire fighting, first aid, health, local environmental, hospital
and transportation personnel.
Broadcast and print media.
Community groups.
Owners or operators of facilities subject to the requirements of this article.
The Committee shall appoint a chairperson and shall adopt procedural rules by which the
Committee shall function including the requirements set forth in ' 301 of Title III. Such
rules shall be effective upon approval by the Tribal Council.
The Commission, as it deems appropriate, may modify the designation of emergency planning
districts in part A of this section. The Commission may also modify its appointments to
the Local Emergency Planning Committee(s). Members of the public may petition the
Commission to modify the membership of the Local Emergency Planning Committee(s).
The Commission shall, for the purposes of organizational simplicity and efficiency, serve as
the Committee, unless 2 or more emergency planning districts are created for the
Reservation at which time two separate committees will be created pursuant to the
provisions of this code.
SECTION 1.7 COMPREHENSIVE EMERGENCY RESPONSE PLANS
The Committee shall comply with ' 303 of Title III.
Based on information from the Commission and Tribal Departments, as well as information
obtained from facilities subject to this chapter and Title III, the Committee shall prepare
and annually review an Emergency Response Plan in order to address emergencies due to
releases from facilities and transportation vehicles in its emergency planning district.
After completing the Emergency Response Plan, the Committee shall provide a copy of
the plan to the Tribal Council and submit a copy to the Commission. The Commission
shall review the plan and make recommendations to the Committee on revisions that may
be necessary to ensure that it meets the requirements of this chapter or any rules adopted
under this chapter. The Commission shall further ensure that the plan is coordinated with
the emergency response plans of adjoining emergency planning districts, as applicable.
The Committee shall evaluate the need for resources necessary to develop, implement, and
exercise the Emergency Response Plan in its district and shall make recommendations to
the Commission with respect to the need for additional resources that may be required
and the means for providing such additional resources.
The Emergency Response Plan shall include the provisions listed in ' 303C of Title III, such as
a Hazards Analysis, and, in addition, shall include:
The identification of emergency response organizations (ERO) in, adjacent to, or otherwise
available to the district. The EROs shall work with the Commission in making
determinations necessary to implement the Emergency Response Plan.
A description of specialized equipment, facilities, personnel and emergency response
organizations available in the district to respond to releases subject to this
section.
Mutual aid agreements with other jurisdictions, and any allocation of emergency response
resources for responding to releases subject to this section, if applicable.
SECTION 1.8 EXTREMELY HAZARDOUS SUBSTANCES
Unless otherwise provided in this chapter, a substance is subject to the requirements of this code
if it is an extremely hazardous substance as listed and published by the administrator of the
United States Environmental Protection Agency, or its successor, and it is held in quantities at or
above the threshold planning quantity as established pursuant to ' 302 of Title III, currently found
at 40 CFR ' 355, Appendix A and B, or as that section may be amended or revised in the future.
SECTION 1.9 FACILITIES SUBJECT TO EMERGENCY PLANNING; FACILITY
EMERGENCY RESPONSE PLANS
A facility is subject to emergency planning requirements if a substance identified under Section
1.8 is present at the facility in an amount at or in excess of the threshold planning
quantity for that substance.
The owner or operator of a facility subject to this section shall notify the Commission that such
facility is subject to the requirements of this chapter pursuant to ' 302 of Title III.
The Commission may designate additional facilities which are subject to this Chapter. The
designation shall be accomplished after notification to the facility of the proposed
designation.
The owner or operator of a facility subject to this chapter shall provide to the Committee the
identity of a facility representative who will participate in the emergency planning
process as the facility emergency coordinator pursuant to ' 303 of Title III.
Upon request, the owner or operator of a facility subject to this chapter shall provide to the
Committee any information necessary for developing and implementing the emergency
plan. Such information may include:
Names, addresses and emergency telephone numbers of facility emergency coordinator and
alternate.
Description of employee emergency response training and facility emergency preparedness
programs.
Description of appropriate emergency equipment necessary to respond to a release.
Description of emergency response procedures including notification procedures and
evacuation plans in the event of a release.
Identification of transport routes and transportation methods used to transport extremely
hazardous substances to and from the facility.
Identification of hazardous substances or hazardous chemicals present at the facility,
including submittal of Material Safety Data Sheets or other information as
provided for in this Chapter.
Facilities shall work with the Commission and Committee to reduce, to the maximum extent
practicable, inventories of Extremely Hazardous Substances, hazardous chemicals, and
toxic chemicals.
SECTION 1.10 EMERGENCY NOTIFICATION OF REPORTABLE RELEASES
If a release of a reportable quantity of an extremely hazardous substance or CERCLA
hazardous substance occurs from a facility or transportation vehicle, the owner or
operator of the facility or transportation vehicle or unit, except as excluded under 40 CFR
' 355.40, shall immediately notify Tribal Fire and Rescue (1st) and the White River
Police Department (2nd). Such notification shall be in accordance with ' 304 of Title III
and regulations promulgated thereunder, which are currently found at 40 CFR ' 355.
The notification shall occur immediately after the facility emergency coordinator or designee,
or operator or owner of the transportation vehicle has knowledge of the reportable
release, unless impracticable under the circumstances. The notice of the reportable
release shall include the following to the extent known at the time of the notice and as
long as no delay in responding to the emergency results:
The specific location of the release.
The chemical name or identity of substances released and a description of the container or
vessel from which the release occurred.
An estimate of the quantity of substances which were released into the environment.
The time and duration of the release.
The medium or media into which the release occurred.
Any known or anticipated acute or chronic health risks associated with the release and, where
appropriate, advice regarding medical attention necessary for exposed
individuals.
Proper precautions to take as a result of the release, including evacuation and other proposed
response actions.
The name and telephone number of the person or persons to be contacted for further
information.
Within thirty days after a reportable release, the owner or operator of a facility where a release
occurred requiring notification pursuant to this section shall submit to the Committee and
to the Commission a written follow-up emergency notice, in accordance with section 304
of Title III, stating and updating the information originally provided pursuant to
subsection A of this section and including the following additional information:
Actions taken to respond to and contain the release.
Any known or anticipated acute or chronic health risks associated with the release.
If appropriate, advice regarding medical attention necessary for exposed individuals.
Measures which have been or will be taken at the facility to avoid a reoccurrence of similar
releases.
After any additional information becomes known, the owner or operator shall update the notice
in writing within seven calendar days.
SECTION 1.11 LISTS OF HAZARDOUS CHEMICALS; MATERIAL SAFETY DATA
SHEETS
For the purposes of this Chapter only, the Tribe references the standards set forth in 29 CFR '
1910.1200 [Hazard Communication] regarding hazardous chemicals and Material Data
Safety Sheets ("MSDS"), derived from the Occupational Health and Safety Act of 1970
(P.L. 91-593; 84 Stat. 1590).
A person who owns or operates a facility which is subject to emergency planning under this
Chapter, shall submit to the Committee, the Commission, and the fire department with
jurisdiction over the facility a MSDS for each chemical, or a list of hazardous chemicals
stored, handled, or processed at the facility pursuant to ' 311 of Title III and regulations
establishing minimum threshold levels adopted under that Act, currently found at 40 CFR
' 370.
If a list of hazardous chemicals is submitted under this section it shall include:
Information prescribed by ' 311 of Title III.
The chemical abstract service registry number applicable to each such chemical and
substance, if available.
An indication of whether the owner elects to withhold information about the hazardous
chemical or extremely hazardous substance from disclosure as a trade secret.
On request of the Committee, the Commission, or the fire department with jurisdiction over the
facility, an owner or operator of a facility who has submitted a list pursuant to this section
shall also submit the MSDS for any chemical on the list to the requesting agency. On
request by any person, the Committee may make available a MSDS or transmit the
request to the Commission which shall make the MSDS available, subject to the trade
secret provisions and regulations adopted under Title III. If the Committee or
Commission does not have the requested MSDS, the Committee or Commission shall
request the MSDS from the facility owner or operator. The facility owner or operator
shall make the MSDS available within thirty days after receiving the request to the
Committee or Commission and the Committee or Commission shall make the MSDS
available to the requesting person subject to the trade secret provisions and regulations
adopted under Title III.
Within three months after discovery by an owner or operator of a facility of significant new
information concerning an aspect of a hazardous chemical for which a list or MSDS was
submitted, or within three months of after a facility obtains a new hazardous chemical
subject to the reporting requirements of this section, the owner or operator shall update
and submit a revised list or MSDS to the Committee, the Commission and the fire
department with jurisdiction over the facility.
SECTION 1.12 EMERGENCY AND HAZARDOUS CHEMICAL INVENTORY FORM
A person who owns or operates a facility which is required to provide a MSDS or chemical
listing under Section 1.11 shall submit to the Committee, the Commission, and the fire
department with jurisdiction over the facility, an emergency and hazardous chemical
inventory form prepared by the commission and in substantial conformance with that
developed by EPA pursuant to ' 312 of Title III as well as comply with ' 312 of Title III
and regulations adopted under that Act, currently found at 40 CFR ' 370.40.
The inventory form shall be submitted on or before March 1 of each year, and shall contain
data on hazardous chemicals present at the facility during the preceding calendar year
above minimum thresholds established in regulations under ' 312 of Title III. The owner
or operator shall submit a "tier II form."
The tier II inventory form shall contain the following information:
The chemical name or the common name of the chemical as provided on the material safety
data sheet and the CAS number.
An estimate, in ranges, of the maximum amount of the hazardous chemical present at the
facility at any time during the preceding year.
An estimate, in ranges, of the average daily amount of the hazardous chemical present at the
facility during the previous year.
A brief description of the manner of storage of hazardous chemical.
The location of the hazardous chemical at the facility.
An indication of whether the owner elects to withhold location information or other
information about a specific hazardous chemical from disclosure to the public as
a trade secret.
An owner or operator of a facility subject to this section shall submit the information required
by this section on the inventory form provided by the Administrator of the United States
Environmental Protection Agency unless the Commission establishes its own form which
prescribes identical content as prescribed by 40 CFR ' 370.40.
For purposes of this section, Tier II forms are the forms established under 40 CFR ' 370.
SECTION 1.13 TOXIC CHEMICAL RELEASE FORMS; DEFINITIONS
For purposes of this section:
"Administrator" means the Administrator of the United States Environmental Protection
Agency.
"Manufacture" means to produce, prepare, import or compound a toxic chemical.
"Process" means the preparation of a toxic chemical after its manufacture for distribution in
commerce either:
In the same form or physical state as, or in a different form or physical state from, that in
which it was received by the person so preparing such substance, or
As part of an article containing the toxic chemical. Process also applies to the processing of a
toxic chemical contained in a mixture or trade name product.
In order to implement ' 313 of Title III the owner or operator of a facility subject to the
requirements of this section and ' 313 of Title III and regulations adopted under that Act
shall complete a toxic chemical release form as supplied by the Administrator, pursuant
to ' 313 of Title III, or as supplied by the Commission, for each toxic chemical listed by
the Administrator pursuant to ' 313 of Title III that was manufactured, processed or
otherwise used in quantities exceeding the toxic chemical threshold quantity as
established in ' 313 of Title III and regulations promulgated under that Act during the
preceding calendar year at that facility. The regulations are currently found at 40 CFR '
372. The form shall be submitted to the Administrator and to the Commission on or
before July 1 of each year and shall contain data reflecting releases during the preceding
calendar year.
The release forms required under this section are intended to provide information to the Tribe
and to the public, including citizens of communities surrounding facilities covered by this
section. The release form shall be available consistent with the trade secret provisions of
Title III to inform persons about releases of toxic chemicals to the environment and to
assist Tribal agencies in reducing chemical releases.
SECTION 1.14 INSPECTION BY TRIBAL FIRE AND RESCUE OR TRIBAL SAFETY
OFFICER
For the purposes of this Chapter, upon reasonable notice, Tribal Fire and Rescue or the Tribal
Safety Officer may enter and inspect facilities in order to determine compliance with this
chapter and for gathering information on hazardous chemicals for the purposes of
emergency planning. Facilities over which Tribal Fire and Rescue has jurisdiction shall
allow on-site inspection and shall provide to the department specific location information
on hazardous chemicals at the facility.
Tribal Fire and Rescue, and any other authorized officer, may execute a search warrant issued
by the Tribal Court in matters arising under this Chapter. Such warrant shall issue with or
without a showing of probable cause that an offense has been or is being committed. If
issued without probable cause, the applicant Tribal Fire and Rescue must show that the
inspection is a part of a neutral scheme of inspection and review pursuant to this
ordinance.
The Tribal Court of the White Mountain Apache Tribe has jurisdiction upon the filing of a
verified complaint by the Tribal Fire and Rescue to issue a warrant for the inspection of a
facility subject to this Chapter. If necessary, the warrant shall be executed with the
assistance of the White Mountain Apache Tribal Police.
At the time of such inspection, the manager or the manager's designee shall, upon inquiry,
advise Tribal Fire and Rescue of the existence and location of any substance whose
character is unknown, but which is suspected of being subject to regulation under this
ordinance. Tribal Fire and Rescue shall be allowed access to such substance and, if it is
subject to such regulation, Tribal Fire and Rescue may assist the inspected party to
undertake proper storage and handling, or disposal. Tribal Fire and Rescue shall not,
however, be responsible for such disposal, and that responsibility shall remain at all times
with the facility and its manager(s).
SECTION 1.15 VIOLATION; PENALTIES AND INJUNCTIVE RELIEF
Civil penalties. Any person, excluding tribal entities or tribal corporations, who fails to comply
with the provisions of this ordinance shall be subject to civil penalties of up to $25,000
per day for each day during which the violation continues. In the case of a second or
subsequent violation, any such person may be subject to civil penalties of up to $75,000
for each day the violation continues.
Criminal penalties. Any person subject to the criminal jurisdiction of the White Mountain
Apache Tribe who knowingly and willfully fails to comply with the provisions of this
ordinance shall, upon conviction, be fined not more than $5,000 or imprisoned for not
more than one (1) year, or both for each violation.
Injunctive relief. Upon proper application to the Tribal Court through the Tribal Attorney's
Office, an injunction may be issued to compel action or to prohibit action in order to
achieve compliance with this ordinance.
SECTION 1.16 IMMINENT DANGERS
The Tribal Court of the White Mountain Apache Tribe has jurisdiction upon the filing of a
verified complaint by the Commission through the Tribal Attorney's Office to restrain
any hazardous materials, conditions, practices, or transportation in any place within the
exterior boundaries of the Fort Apache Indian Reservation which could reasonably be
expected to cause death or serious physical harm. Such authority may be immediately
utilized where it does not reasonably appear that the imminence of such danger cannot be
eliminated through other lawful available means. Any order issued under this section may
require such steps to be taken as may be necessary to avoid, correct or remove the
imminent danger and may prohibit the presence of any individual in locations or under
conditions where such imminent danger exists; except, however, that individuals whose
presence is necessary to avoid, correct, or remove such imminent danger or to maintain
the capacity of a continuous process operation to resume normal operations or where a
cessation of operations is necessary to permit such to be accomplished in a safe and
orderly manner shall not be so restrained.
Upon filing of any such complaint the Tribal Court of the White Mountain Apache Tribe has
jurisdiction to grant such injunctive relief or temporary restraining order pending final
order pursuant to this Chapter. The proceeding shall be as provided by the White
Mountain Apache Rules of Civil Procedure.
Whenever and as soon as the Commission or its authorized representative concludes the
conditions or practices described in subsection A exist in any place within the exterior
boundaries of the Fort Apache Indian Reservation, it shall inform the general public or
specific population affected of the relief being requested.
SECTION 1.17 NOT A CONSENT TO BE SUED OR WAIVER OF SOVEREIGN
IMMUNITY
The establishment of the Commission and the Committee and the authority granted to it by this
Chapter shall not constitute consent to be sued nor a waiver of the sovereign immunity of the
White Mountain Apache Tribe, its agents, or representatives in any manner whatsoever.
SECTION 1.18 SEVERABILITY
If any provision of this Chapter or the application thereof to any person or circumstances is held
invalid, the invalidity shall not affect other provisions or applications of the Chapter which can be
given effect without the invalid provision or application, and to this end the provisions of this
Chapter are severable.
ENVIRONMENTAL CODE CHAPTER TWO
TRIBAL SOLID WASTE PERMITTING PROGRAM
[Historical Note: Chapter Two is derived from Ordinance No. 202 enacted September 27, 1995]
SECTION 2.1 AUTHORITY
This Chapter, "White Mountain Apache Tribal Solid Waste Ordinance" shall be governed by
the Constitution of the White Mountain Apache Tribe of the Fort Apache Indian
Reservation and shall extend to all persons and subjects, to all lands and other property
including natural resources, and to all waters and air space within the exterior boundaries
of the Fort Apache Indian Reservation ("Reservation"), including any lands which may
be later added to the Reservation by any law. White Mountain Apache tribal authority
shall extend outside the boundaries of the Reservation to any persons, subjects, or real
property which are, or may hereafter be, included within the jurisdiction of the Tribe
under any law of the United States. The purpose of this ordinance is to regulate the
disposal of solid waste on the Reservation in order to provide for the health, safety, and
welfare of the Reservation environment and its populace, including temporary visitors
and persons who may pass through the reservation.
Any person who violates any provision of this Chapter or enforceable regulation adopted
pursuant to this Chapter shall be prosecuted under tribal law pursuant to the authority of
the Tribe as set forth in the Constitution and such other laws, ordinances and authorities
as have or may be adopted by the White Mountain Apache Tribe of the Fort Apache
Indian Reservation. The Tribal Judiciary shall be vested with all judicial powers of the
Tribe, including the power to decide cases in which any person, as defined in Article II,
Section 2.2 of this Chapter, is accused by the Tribal Permitting Authority of committing
an offense against the laws of the Tribe. However, certain determinations regarding
compliance with this Chapter may be initially made by the Tribal Permitting Authority as
set forth in this Article. The powers granted to the judiciary by this Section shall include
judicial powers of inherent sovereign authority or other powers which are or may later be
granted or delegated by the Federal Government to the Tribe.
SECTION 2.2 SCOPE AND DEFINITIONS
A. Scope.
No TSWLF shall be constructed or operated at any location which is within the jurisdiction,
or hereafter comes within the jurisdiction, of the White Mountain Apache Tribe
except as it is in compliance with this Chapter. The TPA may impose more
stringent requirements or standards than may be minimally required or authorized
by this Chapter.
Definitions.
The definitions in Article II apply to all subparts of this Article. For purposes of this Article:
"Permit" or "prior approval and conditions" means any authorization, license, or equivalent
control document issued under the authority of this Chapter regulating
the location, operation, design, ground-water monitoring, corrective
action, closure, post-closure care, and financial assurance of tribal solid
waste landfills.
"Permit documents" means permit applications, draft and final TSWLF permits, or other
documents that include applicable design and management conditions in
accordance with Article II of this Chapter and the technical and
administrative information used to explain the basis of the permit
conditions.
"Regional Administrator" means the Regional Administrator from Region 9 of the U.S.
Environmental Protection Agency ("EPA").
"Regulations" means those provisions duly adopted or approved by the Tribal Council to
implement the Tribal Solid Waste Landfill permit program, to undertake
compliance monitoring activities, to initiate and prosecute enforcement
actions in the Tribal Court and to undertake such other actions or
activities as are authorized by this Chapter. Any such regulation adopted
shall not contradict or otherwise be inconsistent with the provisions of
this Chapter.
"Reservation" means the Fort Apache Indian Reservation of the White Mountain Apache
Tribe.
"Tribe" means the White Mountain Apache Tribe of the Fort Apache Indian Reservation.
"Tribal Council of the White Mountain Apache Tribe" or "Tribal Council" means the
recognized governing body of the White Mountain Apache Tribe of the
Fort Apache Indian Reservation.
"Tribal Permitting Authority" or "TPA" means the person or entity authorized by the Tribal
Council of the White Mountain Apache Tribe of the Fort Apache Indian
Reservation to implement the Tribal Solid Waste Landfill permit
program, to undertake compliance monitoring activities, to initiate court
actions and to undertake other actions as authorized by this Chapter.
"Tribal Solid Waste Landfill" unit or "TSWLF" means tribal solid waste landfill as defined in
Article II Section 2.2 of this Chapter.
"Tribal program" or "tribal permit program" means all the authorities, activities, and
procedures that comprise the Tribe's system of prior approval and
conditions for regulating the location, operation, design, ground-water
monitoring, corrective action, closure, post-closure and financial
assurance of tribal solid waste landfills
SECTION 2.3 RESTRICTION ON CONSTRUCTION
Until and unless this Chapter is amended, only a branch of the Tribe may engage in the
management and operation of a TSWLF.
SECTION 2.4 AUTHORITY OF TRIBAL PERMITTING AUTHORITY TO
PROMULGATE REGULATIONS
The TPA may promulgate such regulations as are necessary to implement the requirements of
this Chapter. Such regulations shall have the effect of tribal law upon approval by the
Tribal Council in the same manner as ordinances are approved pursuant to Article XV of
the Constitution of the White Mountain Apache Tribe. Any such regulation adopted shall
not contradict or otherwise be inconsistent with the provisions of this Chapter.
SECTION 2.5 [RESERVED]
SECTION 2.6 PERMITTING REQUIREMENTS
No TSWLF shall be constructed or operated at any location which is within the jurisdiction, or
hereafter comes within the jurisdiction, of the White Mountain Apache Tribe except as it
is in compliance with this Chapter. The TPA may impose more stringent requirements or
standards than may be minimally required or authorized as in its judgment may be
necessary to carry out the provisions of this chapter. Compliance with permitting
requirements means that all facilities must meet the requirements contained in this
Article.
All TSWLF permit documents for permit determinations shall be made available for public
review and comment except those which are claimed and verified by the TPA as
being those which would be subject to protection under federal Freedom of
Information Act, 5 U.S.C. ' 552 and the Privacy Act, 5 U.S.C. ' 552a or other
applicable law. Challenges, if any, to a determination that such information is
subject to this or other protections shall be heard in the White Mountain Apache
Tribal Court.
All final permit determinations on TSWLF permit applications shall be made known to the
public. Such determinations shall be available for review at the office of the
TPA. Notice of such availability shall be published or otherwise publicly
acknowledged by the TPA.
Public comments on permit determinations shall be considered. A 30 day written comment
period may be provided for public review of proposed operating permits. Only written
comments clearly identifying the concerns or issues will be considered by the office of
the TPA. Any such comments shall be provided in letter form and must clearly identify
the commentor. The TPA may respond in writing to appropriately submitted comments
within 30 days of the expiration of the comment period and such responses and summary
of whatever comments are actually responded to shall be available for public review at
the offices of the TPA.
Public hearings shall be provided for by the TPA prior to final approval of a permit. Notice of
each hearing shall be well publicized and shall also be mailed to persons who may have a
particular interest in the solid waste permitting decision. A list of such persons shall be
compiled and maintained. Such persons shall also be made aware of the availability of
materials including policy, program, and technical information regarding the permitting
decision. Notice of such public hearing shall be publicized no less than 30 days prior to
the date of the hearing. The notice shall identify the matters to be discussed at the hearing
and shall include or be accompanied by a discussion of the TPA's tentative determination
on major issues and procedures for obtaining further information. Reports, documents
and data relevant to the discussion at the public hearing shall be available to the public at
least 30 days before the hearing.
The hearing(s) shall be held at times and places
which, to the maximum extent feasible, facilitate attendance by the public. In cases of
actions with broad interest, holding more than one hearing should be considered. The
TPA shall schedule witnesses in advance, when necessary, to ensure maximum
participation and allotment of adequate time for all speakers. Additional time shall be
reserved for unscheduled testimony.
The TPA shall initiate the hearing by advising the
audience of the issues involved in the decision to be made, the considerations the
department will take into account, the department's tentative determinations (if any) and
the information which is particularly solicited from the public. The TPA shall prepare a
complete record of the hearing proceedings and make it available at no cost to anyone
who requests it. Such record may consist of a transcript, a recording or other complete
record. A copy of the record shall be available for public review.
The TPA has the authority to collect all information necessary to issue permits that are
adequate to ensure compliance with Article II of this Chapter. The TPA may promulgate
such regulations as are necessary to further implement or clarify this Section. Such
regulations, if any, shall be promulgated pursuant to Section 2.4 of this Article.
Prior to construction and operation a TSWLF must first obtain a permit through the tribal
permit program incorporating the conditions identified in Section 2.6(d)(3) of
this Article. Any such permit issued must be drafted or approved by the TPA and
will not become effective until the expiration of any applicable comment period
and final approval by the Tribal Council.
All existing TSWLFs must obtain a permit incorporating the conditions identified in Section
2.6(d)(3) of this Article. Any such permit issued must be drafted or approved by
the TPA and will not become effective until the expiration of any applicable
comment period and final approval by the Tribal Council. If no permit is issued
for an existing TSWLF, the TPA shall set forth a schedule providing for the final
closure of the existing TSWLF mandating closure of the facility within a period
of 6 months.
The TPA shall, at a minimum, incorporate into every permit authorizing the construction
and/or operation of any TSWLF requirements adequate to ensure compliance
with Article II of this Chapter. The requirements include:
General standards which achieve compliance with Article II Subpart A.
Location restrictions for TSWLF which achieve compliance with Article II Subpart B.
Operating criteria for TSWLF which achieve compliance with Article II Subpart C.
Design criteria for TSWLF which achieve compliance with Article II Subpart D.
Ground-water monitoring and corrective action standards for TSWLF which achieve
compliance with Article II Subpart E.
Closure and post closure care standards for TSWLF which achieve compliance with Article II
Subpart F.
Financial assurance standards for TSWLF which achieve compliance with Article II Subpart
G.
Acknowledgment that the TPA may conduct any inspections, perform any tests (at the facility
or on materials or samples gathered at the facility), require responses to
requests for information, or take any other action reasonably calculated
to assert the TPA's authority to carry out its duties pursuant to Section
2.7 of this Article and the rest of this Chapter.
SECTION 2.7 COMPLIANCE MONITORING AUTHORITY
The TPA is empowered to:
obtain any and all information, including records and reports, from an owner or operator of a
TSWLF necessary to determine whether the owner/operator is in compliance
with the tribal permitting program requirements;
conduct monitoring, testing, or inspection calculated to ensure that owners/operators are in
compliance with the tribal permitting program requirements. The owner or
operator shall maintain such operating and other records as the TPA may
reasonably require pursuant to either a validly issued permit or as may be
directed by a validly adopted regulation.
enter on or into any site or premises subject to the permit program or in which records
relevant to the operation of regulated facilities or activities are kept. In the event
that entry is denied, the TPA or an authorized representative(s) may execute a
search warrant issued by the Tribal Court in matters arising under this Chapter.
Such warrant shall issue with or without a showing of probable cause that a
violation has been or is being committed. If issued without probable cause, the
applicant TPA must show that the inspection is a part of a neutral scheme of
inspection and review pursuant to this Chapter.
Any information lawfully gathered by the TPA as a result of these or other lawful activities
under this or other applicable laws may be used in enforcement proceedings brought by
the TPA. However, information which may be proprietary or otherwise protected
information of the White Mountain Apache Tribe may only be admitted to the Tribal
Court in camera and shall not otherwise be discoverable or releasable for public
purposes. However, any information gathered which is or would be inadmissible in Tribal
Court pursuant to tribal or other applicable rules of evidence or law shall not be
admissible in such enforcement proceedings.
In order to ensure that the TPA's
compliance monitoring activities are adequate to ensure compliance with the permit
program, the TPA may:
verify the accuracy of information submitted by owners or operators of TSWLFs by
accompanying any permittee to take samples and to review the results of the
testing of such samples either independently or with the permittee. The TPA is
authorized to conduct independent inspections, testing and monitoring, at the
discretion of the TPA, to ensure that all conditions of the permit are being
complied with.
verify the adequacy of methods (including sampling) used by owners or operators in
developing information submitted to the TPA. To this end, the TPA is authorized
to review the methods used by the permittee either independently, or through the
assistance of retained third parties who, in the TPA's judgment, possess adequate
expertise to evaluate such methods.
obtain evidence admissible in an enforcement proceeding as set forth in subsection b, above.
receive and ensure proper consideration of information submitted by the public. To this end,
the TPA shall accept written comments or information submitted by the public
addressing the compliance of persons, or lack thereof, with the provisions of this
Chapter. The TPA shall consider such information within a reasonable period of
time. The TPA shall act upon such information within its discretion and may
provide an oral or written response to the commentor. It shall not be required that
a public commentor provide his or her identity for purposes of this subsection.
The TPA may promulgate such regulations pursuant to Section 2.4 of this Article
as may be necessary to further implement this subsection.
SECTION 2.8 ENFORCEMENT AUTHORITY
The TPA is authorized, to the extent necessary, to employ independent counsel to prosecute
enforcement and other actions addressed in this Section. Where no actual or apparent conflict of
interest is present, enforcement actions may be referred to the Office of the Tribal Attorney. The
Tribal Court, in an appropriately initiated action by the TPA under the Tribal Judicial Code, and
the TPA are empowered and authorized to and may impose the following remedies and mandates
for violation(s) of the tribal permitting program requirements and this Chapter generally:
Upon TPA's adequately showing to the Tribal Court that any particular activity subject to
regulation by this Chapter poses a risk of, or may currently endanger or cause damage to
human health or the environment, the Tribal Court may issue an order to restrain
immediately and effectively any person from engaging in the complained of activity.
Actions brought under this subsection shall be conducted in accordance with the
provisions of the White Mountain Apache Tribal Court Formal Rules of Civil Procedure;
Upon TPA's adequately showing to the Tribal Court that any person is engaging in, threatening
to engage in, or continuing any activity which violates the provisions of this Chapter,
Tribal Council approved regulations adopted thereunder, TPA or Tribal Court order, or
permit issued pursuant to the Tribal permit program, the Tribal Court may issue an
injunction to enjoin such activity. Actions brought under this subsection shall be
conducted in accordance with the provisions of the White Mountain Apache Tribal Court
Formal Rules of Civil Procedure;
The TPA may sue in the White Mountain Apache Tribal Court to recover civil penalties for
violations of the provisions of this Chapter, Tribal Council approved regulations adopted
thereunder, order, or permit issued pursuant to the Tribal permit program. Such penalties
shall be in the amount of up to one-thousand dollars ($1,000) per violation per day, to a
maximum of ten-thousand dollars ($10,000) per day. Further, costs may be awarded in
accordance with the provisions of the Tribal Tort Claims Act Section 3.13 as it exists or
is hereafter amended. Actions brought under this subsection shall be conducted in
accordance with the provisions of the White Mountain Apache Tribal Court Formal Rules
of Civil Procedure;
The TPA may issue compliance orders requiring any person to undertake certain activities to
come into compliance with the law or conditions of its permit; it may issue requests for
information to which any person must respond regarding its operations or otherwise
having to do with ensuring that such person is complying with the law or conditions of its
permit; it may issue a compliance schedule to any person where the TPA determines that
any person is not in compliance with the law or conditions of a permit.
A person's failure to file a response to a request for information within 15 working days of the
request shall constitute a civil violation of this Chapter. A person's failure to meet the
terms of a compliance order or to meet the terms of a compliance schedule shall also
constitute a civil violation of this Chapter.
Except for an arm or branch of the White Mountain Apache Tribe or any person acting within
the official and lawful scope of their duties, it shall be a criminal offense for any person
to intentionally or wilfully violate the provisions of this Chapter. Persons are
conclusively presumed to be aware of the requirements of this Chapter upon its adopted
date. It shall not be a defense that a person was acting at the direction of a superior or
supervisor. Such offenses shall be punishable to the maximum extent of the law,
restricted only by the limitations set forth in the Indian Civil Rights Act of 1968, 25
U.S.C. ' 1302. Such matters shall be referred to the Office of the Tribal Prosecutor for
consideration of filing such criminal charges. If the White Mountain Apache Tribe lacks
criminal jurisdiction over the person(s) for purposes of this Chapter, the matter may be
civilly prosecuted and/or referred to the appropriate federal agency or authority for
criminal and/or civil prosecution.
No person shall dump or otherwise dispose of any household solid waste on any lands or at any
place within the jurisdiction of the White Mountain Apache Tribe other than at A
TSWLF unit permitted by the TPA, or otherwise in a manner not in accordance with such
permits or regulations that the TPA may issue or promulgate in order to serve the
purposes and intent of this Chapter. No person shall burn household wastes. No person
shall dump or otherwise dispose of any other waste, including construction debris, at any
place within the jurisdiction of the White Mountain Apache Tribe other than at a site,
location, or disposal unit authorized by the Tribal Council or other appropriate tribal
authority.
Any person who violates these conditions or regulations shall be in
violation of this Chapter and shall be subject to all enforcement actions and other
provisions of this Chapter. This provision is applicable regardless of whether the activity
occurs on assigned or unassigned land within the meaning of the White Mountain Apache
Land Code, whether the land is leased or occupied by a tribal or non-tribal entity, and
regardless of the nature of any other manner in which such lands may be held or be
subject to a legal interest. Additionally, such person may be required to pay for the cleanup and other impacts (including groundwater, soil or other damage or contamination) of
the illegally deposited waste. It shall be within the TPA's discretion as to whether such
waste shall be removed and the area remediated by tribal or non-tribal entities not related
to such person, or whether such person shall be authorized to conduct such clean-up and
remediation directly. The TPA shall consider authorizing such person to complete cleanup and remediation within fourteen (14) days, or within such additional time as the TPA
determines is appropriate, after the person is notified in writing of the unlawful dumping.
Additional costs may be recovered in accordance with the provisions of the Tribal Tort
Claims Act Section 3.13 as it exists or is hereafter amended.
The TPA is authorized to issue written orders and take such other action in accordance with
subsection (c) of this section compelling the owner, assignee, or occupant of buildings,
grounds, or lots or assigned lands to remove rubbish, trash, weeds, wrecked auto bodies
or other accumulations of filth or debris which constitutes a hazard to the public health
and safety or welfare from buildings, grounds, lots, or other places which such persons
may own or control. Notice shall be provided to such person not less than thirty days
before the day set for compliance. The notice shall either be personally served or mailed
to the owner, assignee or person in control of the site at his or her last known address. If
such person does not comply with an order validly issued by the TPA, the TPA may
make arrangements for the removal of such filth or debris and may assess the person the
costs of removal and proper disposal of such material. If necessary, the TPA may bring
an action in Tribal Court to recover the costs and may recover such other costs as are
provided for in accordance with the provisions of the Tribal Tort Claims Act Section 3.13
as it exists or is hereafter amended.
SECTION 2.9 INTERVENTION IN CIVIL PROCEEDINGS
The TPA shall:
provide notice and opportunity for public involvement in all proposed settlements of civil
enforcement actions (except where immediate action is necessary to adequately
protect human health and the environment);
investigate and provide responses to citizen complaints about violations as set forth in section
2.7(c)(4) of this Article; and
will not oppose citizen intervention when permissive intervention is allowed by statute, rule,
or regulation.
SECTION 2.10 SEVERABILITY
If any provision of this Chapter or the application thereof to any person or circumstances is held
invalid, the invalidity shall not affect other provisions or applications of the Chapter which can be
given effect without the invalid provision or application, and to this end the provisions of this
Chapter are severable.
CHAPTER THREE
WATER QUALITY PROTECTION
PREAMBLE
Tú, water, is one of the gifts of the Creator that is essential to the survival of the White Mountain
Apache People. Water is inseparable from our land and culture. Our homeland has always been
blessed with a great number of springs, streams, and meadows to sustain a diverse and vibrant
community of plants, wildlife, and people. We have always sought to protect our precious natural
resources and special places. We recognize that we must assert full authority over all the lands
and waters of our Reservation to protect them from abuse. The standards for water quality in this
Tribal Ordinance will guide the protection of our waters for present and future generations.
It's good we have that water. We need it to live. It's good we have that spring too. We need it to
live right.
-- Apache Elder Nick Thompson speaking on the significance of a spring in Cibecue, tú nchaa
halíí'
Dzi_ _ iqai si= á_ Ndee bi Tú diyini
Water is sacred. Water for the Apache people comes from the White Mountain.
Ramon Riley, on behalf of the Apache Culture Advisory Group
SECTION 3.1 INTRODUCTION, AUTHORITY AND APPLICABILITY
PURPOSES. Pursuant to the inherent and aboriginal sovereign authority of the White
Mountain Apache Tribe, and as authorized by and recognized in Section 518 of the Clean
Water Act, 33 U.S.C. 1377, (February 4, 1987), the Tribal Council of the White
Mountain Apache Tribe, a federally-recognized Indian tribe, hereby enacts this Water
Quality Ordinance ("Ordinance") for all waters within exterior boundaries of the Fort
Apache Indian Reservation (A Reservation").
The purposes of this Ordinance and the
standards contained herein are as follows:
To promote the health of tribal waters and the people, plants, and wildlife that depend on
them through holistic management and sustainable use;
To designate the existing and attainable uses for which the surface water of the White
Mountain Apache Tribe shall be protected;
To prescribe water quality standards to sustain the designated uses; and
To assure that degradation of existing water quality does not occur.
The standards contained herein are intended and shall be construed to be consistent with
the Clean Water Act, which declares its objective to "restore and maintain the chemical,
physical, and biological integrity of the Nation's waters." The Tribe shares that objective
for its waters, and further adds the objective of restoring and maintaining the cultural and
spiritual integrity of its waters.
The Clean Water Act also states that "it is the national
goal that, wherever attainable, an interim goal of water quality which provides for the
protection and propagation of fish, shellfish, and wildlife and provides for recreation in
and on the water. Irrigation, primary contact, domestic water supply (including municipal
and industrial), groundwater recharge, plant gathering, fish culture, and respect for
culturally or religiously significant areas are other beneficial uses of the Tribal waters
intended to be protected by this Ordinance. Any contamination that may result from such
uses shall not lower the quality of the water below what is needed for life, including
human recreation and protection and propagation of fish and wildlife that depend on
Tribal waters.
APPLICABILITY. Except as specifically provided herein, this Ordinance applies to all
waters within the exterior boundaries of the Reservation, including water situated wholly
or partly within, or bordering upon the Reservation, including but not limited to all waters
reserved by the White Mountain Apache Tribe since time immemorial. Waters which are
not in immediate hydrologic connection with other surface or subsurface waters, such as
some stock tanks, constructed wetlands, treatment lagoons are excluded from this
Ordinance. Artificially created conveyance systems such as irrigation ditches are also
excluded. However, the standards do apply to the receiving bodies of water impacted by
the effluent from such sources. The specified criteria apply to substances attributable to
point source discharges, nonpoint sources, or instream activities. The criteria shall not
apply to natural phenomena not brought about by human activity.
GENERAL STANDARDS. The general standards in Section 3.5 of this ordinance shall be
maintained at all times and apply to all perennial, ephemeral, and intermittent streams,
and to all ponds, lakes, standing waters, sub-surface waters, wetlands, and springs. The
most stringent numerical criteria applicable to any perennial stream shall be maintained
any time the flow equals or exceeds the lowest four-day mean flow in a three-year period
(define as 4Q3). Human Health Criteria shall be implemented through the harmonic mean
flow. When ephemeral and intermittent streams have a low flow value of zero, all
discharges shall meet standards for the designated uses. The criteria assigned to a water
body are the ones required to sustain all designated uses of the waterbody. When a Tribal
water has more than a single existing attainable or designated use, the applicable numeric
standards shall be the most stringent of those established for such a waterbody. The
Tribal Council of the White Mountain Apache Tribe shall approve and issue surface
water designations for Tribal waters and shall determine the suitability of bodies of water
for primary contact purposes. The numeric and narrative criteria contained in this
Ordinance will be part of the permitting and management process for all dischargers who
are subject to regulation by the White Mountain Apache Tribe and/or the Federal
Government. The standards shall be used in existing permitting and management
processes, or new processes that may be created, in order to determine when a designated
use is threatened. If standards are exceeded, and if it is determined that such exceedance
would impair a designated use, then the permitting or management processes will be
expected to require treatment technologies for regulated point sources and to implement
such best management practices as are applicable for regulated non-point sources.
ANTI-DEGRADATION POLICY. The anti-degradation policy for Tribal waters is set forth
in Section 3.2 of this Ordinance.
IMPLEMENTATION PLAN. The plan for implementing the anti-degradation policy and
other aspects of this Ordinance is set forth in Section 3.3 of this Ordinance.
ENVIRONMENTAL PLANNING OFFICE. The Tribe's Environmental Planning Office
(EPO), or other designated Tribal Environmental Office or department shall work in
cooperation with other Tribal entities, the U.S. Environmental Protection Agency
("EPA") and other appropriate agencies to implement this Ordinance. The responsibilities
of the EPO are detailed in the Implementation Plan of Section 3.3 in this Ordinance.
ADOPTION AND REVISIONS. The Tribal Council has exclusive authority to adopt and
modify this Ordinance. The Tribal Council also may revise the standards from time to
time if deemed necessary through use attainability analysis or as the need arises or as a
result of updated scientific information.
PUBLIC HEARINGS. Pursuant to Section 303(c) of the Clean Water Act, 33 U.S.C. '
1313(c), the White Mountain Apache Tribe shall hold public hearings at least once each
three-year period for the purpose of reviewing and, as appropriate, modifying and
adopting water quality standards. Revisions shall incorporate relevant scientific and
engineering advances with respect to water quality and waste water treatment. The Tribe
shall hold public hearings before modifying or amending this Ordinance or incorporating,
by reference, any regulations into this Ordinance. Errors resulting from inadequate or
erroneous data, human or clerical oversight will be subject to correction by the Tribal
Council. The discovery of such errors does not render the remaining and unaffected
standards invalid. Public hearings will be held in accordance with White Mountain
Apache Tribal law, as well as 40 C.F.R. Part 130 (EPA's Water Quality Management
Regulation), and 40 C.F.R. Part 25 (EPA's Public Participation Regulation).
USE ATTAINABILITY ANALYSIS. In the event that monitoring of water quality identifies
waters where attainable water quality is less than existing water quality standards, or the
Tribal Council wishes to remove a designated use, provided that the designated use is not
an actual existing use, the standards may be modified to reflect attainability. Such
modifications shall be carried out in accordance with use attainability analysis procedures
set forth in 40 C.F.R. ' 131.10 or other appropriate methods. To remove a designated use,
the use attainability analysis must demonstrate that attaining the designated use is not
feasible for any of the following reasons:
Naturally occurring pollutant concentrations prevent the attainment of the use;
Natural, ephemeral, intermittent or low-flow conditions or water levels prevent the attainment
of the use, unless these conditions may be compensated for by the discharge of a
sufficient volume of effluent discharges without violating water conservation or
other applicable requirements to enable uses to be met;
Human caused conditions or sources of pollution prevent the attainment of the use and cannot
be remedied or would cause more environmental damage to correct than to leave
in place;
Dams, diversions or other types of hydrologic modifications preclude the attainment of the
use, and it is not feasible to restore the water body to its original condition or to
operate such modification in a way that would result in attainment of the use;
Physical conditions related to the natural features of the water body, such as the lack of a
proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water
quality, preclude attainment of aquatic life protection uses;
Controls more stringent than those required by Sections 301(b) and 306 of the Clean Water
Act, 33 U.S.C. '' 1311(b) & 1316 would result in substantial and economic and
social impact.
SEPARABILITY. If any provision of this Ordinance or the application of any provision of
this Ordinance should be held to be invalid, the application of such provision to other
persons or circumstances and the remainder of this Ordinance shall not be affected
thereby.
SCHEDULES. It shall be the policy of the White Mountain Apache Tribe to allow on a caseby-case basis the inclusion of a compliance schedule in a National Pollutant Discharge
Elimination System ("NPDES") permit issued to an existing facility. Such a schedule of
compliance will be for the purpose of providing a permittee with adequate time to make
treatment facility modifications necessary to comply with water-quality based permit
limitations determined to be necessary to achieve stream standards. Compliance
schedules may be included in NPDES permits at the time of permit reissuance or
modification and shall require compliance at the earliest practicable time, not to exceed
three years. Compliance schedules also shall specify milestone dates so as to measure
progress towards final project completion.
VARIANCES. The Tribal Council may allow variances from this Ordinance and the standards
herein on a case-by-case basis. A variance may be allowed in certain cases where the
appropriateness of specific criteria is questionable. The variance provides a period of
time during which issues concerning the appropriateness of the criteria may be resolved.
A variance shall be valid for no more than three years. Variances are not renewable but
may be reissued again upon adequate justification. A variance shall be granted only after
appropriate public participation. Variances will be allowed for anticipated non-attainment
of water quality standards due to one or more of the reasons listed in 40 C.F.R. '
131.10(g). Variances shall be for specific pollutants, time-limited, and shall not forego
the current designated use. Where a designated use for a waterbody is not now attainable
but can be expected to make reasonable progress towards water quality, variances are to
be issued rather than removing the designated use for that waterbody.
SHORT TERM EXCEEDANCES. The Tribal Environmental Planning Office or other
authorized Tribal Office or department with consent from the Tribal Council, may
authorize short-term activities that may cause temporary violations of the water quality
standards if the White Mountain Apache Tribe determines that such activities are
necessary to accommodate legitimate uses or emergencies or to protect public health and
welfare. A short term exceedance will only be allowed for activities that are not likely to
cause permanent or long-term impairment of beneficial uses, such as, but not limited to,
riparian restoration activities, bank stabilization, mosquito abatement, algae and weed
control, tracers used in hydrological studies or activities which result in overall
enhancement or maintenance of beneficial uses. Such authorization shall not be granted
for activities which could result in the adverse impact on any species designated as
sensitive by the Tribe. The Environmental Planning Office shall specify the degree of
variance, the time limit and restoration procedures where applicable. Nothing herein shall
be intended to supersede existing White Mountain Apache Tribe and federal permitting
processes or requirements.
DISPUTE RESOLUTION MECHANISM.. Should a dispute due to differing water quality
standards arise between the White Mountain Apache Tribe and the State of Arizona, the
Tribe shall follow the Dispute Resolution Mechanism set forth in 40 C.F.R. ' 131.7.
Should a dispute due to differing water quality standards arise between the Tribe and a
neighboring Indian Tribe, the Tribe shall seek to resolve the dispute through inter-tribal
discussions, mediation, or non-binding arbitration.
SECTION 3.2 ANTI-DEGRADATION POLICY
The anti-degradation policy of the White Mountain Apache Tribe is as follows:
Existing instream water uses and the level of water quality necessary to protect the existing
uses shall be maintained and protected;
Where existing water quality is better than necessary to support propagation of fish, shellfish,
and wildlife and recreation in and on the water, that quality shall be maintained and
protected unless the Tribal Council finds, after full satisfaction of intergovernmental
coordination and public participation provisions of this Ordinance, that:
allowing lower water quality is necessary to accommodate important economic or social
development in an area where the waters are located,
water quality adequate to protect existing uses is fully protected,
the highest statutory and regulatory requirements for all new and existing point sources are
achieved, and
all cost effective and reasonable best management practices for non-point source control are
implemented.
In those cases where potential water quality impairments associated with thermal discharge is
involved, the anti-degradation policy and implementing methods shall be consistent with
Section 316 of the Act, 33 U.S.C.' 1326.
UNIQUE WATER DESIGNATIONS
HIGH QUALITY WATERS
Where water quality exceeds the levels necessary to support basic uses such as propagation of
fish, and wildlife and recreation in and on the water, the Tribal Council
may designate those waters as high quality waters.
Water quality and stream ecosystem health in high quality waters shall be maintained to
protect:
culturally or religiously significant areas
archaeological and historical sites
natural flow regimes
natural flood retention capacity
instream habitats for fish and other aquatic life
water-dependent wildlife, including plants and wildlife designated as sensitive by the
Tribe
native riparian vegetation, including plants traditionally gathered for cultural and
medicinal purposes
SENSITIVE WATERS
The Tribal Council may designate a water body as a sensitive water and such waters shall be
maintained to protect water quality and stream ecosystem health in the
same manner as high quality water. In many cases, these waters have
been substantially degraded from their historical condition. This state of
degradation may prevent many of the uses, including recreation and
support of the full assemblage of native aquatic life, that were once
provided by these streams. It may not be known to what extent those uses
may be restored in the future. Nevertheless, it is the Tribe's policy that
these waters should be protected to encourage natural restoration to
occur, and to engage in active restoration measures on a priority basis.
In permitting any activity that could impact in sensitive water bodies, the Tribe shall require
the most stringent statutory and regulatory requirements for all new and
existing point sources and all cost-effective and reasonable best
management practices for non-point source control.
OUTSTANDING TRIBAL RESOURCE WATERS
The Tribal Council may designate a water body as an Outstanding Tribal Resource Water due
to cultural value, the presence of archeological or historic sites,
ecological or biological features, scenic beauty, or other exceptional
qualities of importance to the Tribe.
No degradation of Outstanding Tribal Resource Waters shall be permitted (i.e. their high
quality shall be maintained and protected).
SECTION 3.3 IMPLEMENTATION
IMPLEMENTATION PROCEDURES. Implementation procedures are as follows:
The Environmental Planning Office shall implement and enforce this Ordinance, including
but not limited to the water quality standards and anti-degradation policy, by
establishing and maintaining controls on the discharge of pollutants to surface
waters. The White Mountain Apache Tribe may adopt additional regulations and
ordinances for enforcement of the Water Quality Standards. Unless and until the
White Mountain Apache Tribe asserts primary responsibility for NPDES
permitting, the EPA shall work together with the Tribe to develop, issue and
enforce permits for dischargers within the Reservation in accordance with
standards set forth in this Ordinance.
To the extent required to ensure compliance with this Ordinance, the Environmental Planning
Office and other Tribal offices and departments, including, but not limited to the
Watershed Planning Program, Utility Authority, Wildlife and Outdoor Recreation
Division, and outside agencies as requested by the Tribe shall:
Monitor water quality (chemical, physical, and biological) to assess the effectiveness of
pollution controls and to determine whether water quality standards are
being attained;
Obtain and assess information pertinent to the actual environmental effect of any effluent
discharge, using data that accurately represents the quality and quantity
of the effluent and receiving water, with due consideration of all factors
that bear on the actual or attainable use of a receiving water;
Advise any prospective discharger in writing, as needed, of requirements for obtaining a
permit to discharge, including any additional permit requirements that
the White Mountain Apache Tribe may enact;
Maintain and review the adequacy of existing data bases and obtain additional data when
required;
Assess the probable impact of effluent discharges on receiving waters with regard to
designated uses, anti-degradation policy, and numeric and narrative
standards;
Require the degree of wastewater treatment that is practicable, cost-effective and
commensurate with protecting and maintaining designated uses and the
existing water quality of the receiving water, with consideration of the
long-term Tribal objectives for the economy and environment;
Follow EPA-approved procedures to develop water quality-based effluent limitations and
comment on technology-based effluent limitations, as appropriate, for
inclusion in any Tribal or federal permit issued to a discharger;
Require that effluent limitations developed by the White Mountain Apache Tribe be included
in any such permit as a condition for Tribal certification pursuant to
Section 401 of the Clean Water Act, 33 U.S.C. ' 1341, provided that a
reasonable time, not to exceed three years, for compliance shall be duly
considered in determining whether certification shall be granted, and
provided further that effluent discharge limitations more stringent than
those contained in existing NPDES permits shall not be imposed without
providing an applicant an opportunity to demonstrate that existing permit
limitations are adequate to protect existing and designated uses of
receiving waters;
Institute and coordinate water pollution control activities with other Tribal entities, including
other departments, enterprises, livestock associations, and communities
as appropriate;
Coordinate water pollution control activities with the San Carlos Apache Tribe, State of
Arizona, and federal agencies, as appropriate and in consultation with the
Tribal Council;
Develop and pursue inspection and enforcement programs to ensure that:
dischargers comply with requirements of this Ordinance,
satisfy the requirements of any regulations the White Mountain Apache Tribe enact
subsequent to the adoption of this Ordinance, and
enforce federal permits with assistance from the Environmental Protection Agency;
Assist the Tribal Utility Authority in providing continuing technical training for wastewater
treatment facility operators through training and certification
programs;
outside agencies, the development and implementation of
best man(m) Encourage in conjunction with other Tribal entities and
agement practices to control nonpoint sources of pollutants to achieve
compliance with this Ordinance;
Ensure that the provisions for public participation required by Tribal law and applicable
provisions of the Clean Water Act are followed;
Subject to the approval of the Tribal Council, designate streams as perennial, intermittent, or
ephemeral in accordance with this Ordinance and with appropriate
hydrologic technical support; and
Provide technical support as is required to accomplish the objectives of this Ordinance,
including recommendations to the Tribal Council of any permitting or
management regulations which would be consistent with the purposes of
this Ordinance.
PUBLIC NOTIFICATION.
Any proposed amendments of these standards must be carried out according to Tribal laws
regarding public review of Tribal ordinances.
Amendments of these standards shall also comply with applicable requirements of the federal
Clean Water Act
SECTION 3.4 ENFORCEMENT & PENALTIES
JURISDICTION. Except as otherwise provided by this Code, the White Mountain Apache
Tribe, through its Tribal Council, Tribal Court, and such other tribal entities as are
designated by Tribal law, shall have absolute, original, and exclusive jurisdiction to
regulate and adjudicate all matters pertaining to water quality within the boundaries of
the Fort Apache Indian Reservation. The Tribal Court may exercise absolute original and
exclusive jurisdiction over all individuals, whether members of the White Mountain
Apache Tribe, non-member Indians or non-Indians, who violate any provision described
herein. This Section shall not profit federal prosecution, whether civil or criminal.
NOTICE. Signs shall be posted conspicuously at the northern and southern points of entry
onto the Reservation along Arizona State Route 260 and the northern and eastern points
of entry onto the Reservation along Arizona State Route 260, putting the public on notice
of Tribal jurisdiction over Tribal lands. The notice shall be in a form similar to the
following, to the effect that:
Visitors consent to Tribal jurisdiction; and
Persons who violate any Tribal law are trespassers and shall be subject to Tribal and Federal
prosecution.
PROCEDURE. Except as otherwise provided in this Code, or as the interests of justice may
require, the White Mountain Apache Formal Rules of Civil Procedure shall govern all
questions of procedure arising as a result of the enforcement of this Code.
FEDERAL PROSECUTION.
Nothing in this Code shall be deemed to preclude federal prosecution of Nonmembers who
trespass on the Reservation. Federal prosecution may be pursued in addition to,
or in lieu of, other enforcement procedures provided by this Code.
Any use of Reservation waters contrary to the terms of this Code constitutes theft of Tribal
assets. Accordingly, nothing in this Code shall be deemed to preclude federal
prosecution under 18 U.S.C. ' 1163 for theft of Tribal property. Federal
prosecution may be pursued in addition to or in lieu of other enforcement
procedures provided by this Code.
WARRANTS, SUBPOENAS, AND SERVICE OF PROCESS.
Any Authorized Officer
may, in addition to exercising any of the powers granted by this Code:
Execute search warrants issued by the Tribal Court in matters arising under this Code;
Serve subpoenas or other legal documents issued in matters arising under this Code;
Issue citations for violations of this Code.
IDENTIFICATION OF SUSPECTED VIOLATORS.
Any Authorized Officer who has reasonable grounds to believe that a person has violated this
Code, either in or out of the Officer's presence, shall identify himself or herself to
such person and promptly determine whether the person is a Member or
Nonmember. If the individual is a Nonmember, the Officer shall determine
whether the person is Indian or non-Indian. In making such determination, the
officer may demand identification and ask such questions as the office
reasonably believes are necessary to make the determination.
Any person, who an Authorized Officer reasonably believes to have violated this Code, may:
Be issued a citation pursuant to Section xxx; or
Be issued a complaint regarding the individual to appear in Tribal Court.
If the suspected violator refuses to identify himself or herself the Officer shall enter a
fictitious name, such John Doe, on the citation. After learning the defendant's
true name, the Tribe shall amend the citation or complaint to reflect the
defendant's true name.
CIVIL CITATIONS.
Any Authorized Officer can issue civil citations imposing fines of up to $500 for violations of
this Code. The citation form shall state that the fine can be appealed by
submitting a notice of objection to the Tribal Court and that the objecting party
will be required to appear at a hearing before a Tribal judge to address the matter.
The citation shall be prepared in duplicate and be signed by the person cited. One copy will
be given to the person cited, the other copy will be filed with the Tribal Attorney.
The citation shall inform the person cited of the violation charged, the location, date, and time
of the alleged violation, and the location, date and time of the Initial Appearance,
which shall be scheduled not more than 14 days from the date of the issuance of
the citation. The citation shall also inform the person cited that failure to appear
at the Initial Appearance will result in the entry of a default judgment against him
or her and forfeiture of bond money and/or property.
COMPLAINTS.
In lieu of issuing a citation, any Authorized Officer can issue a Complaint against any
individual suspected of violating this Code. The issuance of a Complaint initiates
a civil action against a suspected violator.
The Complaint shall be prepared in duplicate and shall be signed by the person cited. One
copy will be given to the person cited, the other copy will be filed with the Tribal
Legal Department.
The Complaint shall inform the person cited of the violation charged, the location, date, and
time of the alleged violation, and the location of the Initial Appearance. The
complaint shall notify the cited person that notice of their Initial Appearance date
will be mailed to them within 30 days of the actual day and that their failure to
appear at the Initial Appearance will result in the entry of a default judgment
against him or her and forfeiture of bond, money or property.
INITIAL APPEARANCE.
A person served with a Complaint shall appear at the time and place stated in the Complaint,
or prior to that time if so authorized by the Court, and shall, upon the directions
contained in the Complaint, admit or deny the allegations stated therein. The
defendant may also file a written response to the complaint, provided that the
written response is received by the Court prior to the scheduled Initial
Appearance.
If the defendant admits liability for the cited violation(s), the Court may immediately impose
a penalty or set a separate hearing to establish a penalty. If the defendant denies
liability, the proceedings used to adjudicate liability shall be in accordance with
the White Mountain Apache Tribe Formal Rules of Civil Procedure. Upon a
showing of substantial need and in the interests of justice, the Court may order
that the proceedings be held in accordance with the White Mountain Apache
Tribe Informal Rules of Civil Procedures.
TRESPASSING, EXPULSION OF NONMEMBERS.
Any Nonmember who violates this Code shall be deemed a trespasser. It shall be unlawful for
any Nonmember to trespass on the White Mountain Apache Reservation.
Any Authorized Officer may expel Nonmember who violate this Code, in addition to or in
lieu of any other enforcement procedure provided for by this Code.
Any Nonmember who violates this Code shall also be subject to formal exclusion pursuant to
Chapter 5, White Mountain Apache Government code, WMAT Law & Order
Code.
CONTEMPT. All defendants to actions brought under this Code, whether Member or
Nonmember, shall be subject to the civil contempt power of the White Mountain Apache
Tribal Court, and may be sanctioned by any means provided for in the White Mountain
Apache Tribal Code for civil contempt.
LIQUIDATED DAMAGES PROVISIONS.
The Department shall prepare and, at least once per year, shall review and, revise, as
necessary a schedule of Liquidated Damages calculated to closely approximate
the cost of providing equitable restitution to the Tribe for the damage which
would be caused by each violation of each regulation of this Code. In calculating
these Liquidated Damages the Department may consider, in addition to any other
factors reasonably deemed relevant:
The cost to the Tribe of producing and/or protecting the resource;
The cost of replacing or restoring the resource;
The costs of enforcement including the general overall costs and costs particularized to
individual violations where appropriate;
Damages for trespass.
LIQUIDATED DAMAGES PRESUMPTION.
Since in most instances the exact amount of damages caused to the Tribe by a particular
violation of this Code will be difficult or impossible to determine, it shall be
presumed by the court adjudicating a complaint for violation of this Code that the
amount fixed by the schedule of Liquidated Damages represents the damages
owed to the Tribe as restitution if the defendant is found to be liable. This
presumption may be rebutted by showing of clear and convincing evidence that
the amount indicated by the schedule of Liquidated Damages is so excessive as
to be punitive, or so inadequate in a particular case as to result in a gross
deprivation of adequate restitution. In any case in which the presumption is
successfully rebutted, the parties may introduce evidence to prove the actual
damages as in any other civil case.
All persons shall be deemed to have consented to the Liquidated Damages provisions of this
Code by their presence and by their impact to Reservation water quality.
PUNITIVE DAMAGES.
Nothing in this Code shall be deemed to preclude the Tribe, through its counsel, from praying
for and being awarded punitive damages in any civil action filed for a violation
of this Code wherein it is alleged that the violator has committed the acts
constituting the violation with wanton, wilful or malicious disregard for the
interests of the Tribe.
The Court, in assessing punitive damages, shall determine their amount in the same manner
in which it would determine punitive damages in any other civil action. Punitive
damages shall not exceed ten times the amount of the civil penalty.
COSTS.
In addition to civil penalties and liquidated and punitive damages, the Court may award
payment of costs associated with damage to Tribal resources not otherwise
provided for in this Code, including, but not limited to, rehabilitation,
reforestation, loss of future revenue and loss of productivity.
The Court may also charge the violator with payment of all reasonable costs associated with
the enforcement of these regulations, beginning with detection and including all
processes through prosecution and collection of the settlement, such as field
examination and survey, damage appraisal, investigation assistance and reports,
witness expenses, demand letters, court costs and attorney's fees.
DISPOSITION OF FEES, FORFEITURES, PENALTIES.
All fines, costs, monies penalties or damages collected for violation(s) of this Code shall be
deposited in the Tribal General Fund and shall be available for expenditure in
connection with the conservation and protection of water resources within the
exterior bounds of the Fort Apache Indian Reservation.
Each Tribal judge or clerk of the Court shall, within twenty days after a judgment has been
rendered under the provisions of this Code, remit tot he Tribal Treasurer all fines,
forfeitures, damages or penalties collected.
SECTION 3.5 NARRATIVE WATER QUALITY STANDARDS
Tribal waters shall be free of contaminants in such quantity and duration as may, with reasonable
probability, injure human health, animal or plant life, or property, or unreasonably interfere with
the public welfare or the use of property. In addition, the following narrative standards apply to
all Tribal Waters, unless stricter standards are imposed.
BOTTOM DEPOSITS. The bottoms of all Tribal waters shall be free from water
contaminants from other than natural causes that will settle and cause deleterious effects
to the aquatic biota, including fish, or significantly alter the physical or chemical
properties of the bottom.
FLOATING SOLIDS, OIL, AND GREASE. All waters shall be free from visible oils, scum,
foam, grease and other floating materials and suspended substances of a persistent nature
resulting from other than natural causes.
COLOR. Materials producing true color resulting from other than natural causes shall not
create an aesthetically undesirable condition; nor shall color impair the attainable uses of
the water or harm aquatic life.
ODOR AND TASTE. Water contaminants from other than natural causes shall be limited to
concentrations that will not impart unpalatable flavor to fish, result in offensive odor or
taste arising from the water, or otherwise interfere with the existing and attainable uses of
the water, nor shall taste and odor-producing substances of other than natural origin
interfere with the production of a potable water supply by modern treatment methods.
NUISANCE CONDITIONS. Nutrients or other substances stimulating algal growth from
other than natural causes shall not be present in concentrations that will produce
objectionable algal densities, nuisance aquatic vegetation, result in a dominance of
nuisance species instream, or otherwise cause nuisance conditions. When stricter
requirements are not established elsewhere in this Ordinance, the minimum dissolved
oxygen shall be maintained at or above 2 mg/liter in order to prevent nuisance conditions
from other than natural causes. The phosphorus and nitrogen concentrations shall not be
increased to levels that result in man-induced eutrophication problems. The Tribal
Council may establish nutrient limitations for lakes, reservoirs, and streams and shall
incorporate such limitations into appropriate water quality management plans.
PATHOGENS. Tribal water shall be virtually free from pathogens which include bacterias
viruses or parasites. In particular, waters used for irrigation of table crops shall be
virtually free of Salmonella and Shigella species.
TURBIDITY. Turbidity attributable to other than natural causes shall not reduce light
transmission to the point that the aquatic biota is inhibited or that will cause an
unaesthetic and substantial visible contrast with the natural appearance of the water.
Specifically, turbidity shall not exceed 5 NTU over background when background
turbidity is 50 NTU or less. When background turbidity is more than 50 NTU, there shall
not be more than a 10% increase in turbidity Background turbidity may be estimated by
measuring levels upstream of the human-caused impacts or during zero runoff periods
(greater than five (5) days after most recent event).
MIXING ZONES. In any perennial waters receiving a waste discharge, a continuous zone
shall be maintained where the water is of adequate quality to allow the migration of
aquatic life with no significant affect on their population. The cross-sectional area of
mixing zones shall generally be less than 1/3 of the cross-sectional area at or above 4Q3
conditions of the receiving stream. In intermittent or ephemeral streams, discharges shall
meet all applicable numeric and narrative criteria at the point of discharge with no
allowance for mixing zones. There shall be no acute toxicity in mixing zones and no
chronic toxicity at the edge of the mixing zone. Numeric acute criteria shall be attained at
the point of discharge. Mixing zones shall not overlap sites of primary contact.
Requirements for mixing zones shall be expressed in terms of specific concentration
limits for specific parameters and shall be consistent with those established in the water
quality management plans and implementation plans developed by the White Mountain
Apache Tribe.
RADIOACTIVE MATERIALS. The radioactivity of Tribal water shall not exceed the
maximum natural background concentrations in Tribal waters.
TEMPERATURE. The introduction of heat by other than natural causes shall not increase
temperature outside mixing zones by more than 2.0_ C (5_ F), based upon the monthly
average of the maximum daily temperatures measured at mid-depth or three feet
(whichever is less) outside the mixing zone. In lakes, the temperature of the water column
or epilimnion (if thermal stratification exists) shall not be raised more than 1.7_ C (3_ F)
above that which existed before the addition of heat of artificial origin, based upon the
average of temperatures taken from the surface to the bottom, or the surface to the bottom
of the epilimnion (if stratified). Normal daily and seasonal variations of temperature that
were present before the addition of heat from other than natural sources shall be
maintained. In no case shall heat of artificial origin be permitted when the maximum
temperature specified for the reach would thereby be exceeded. High water temperatures
caused by unusually high ambient air temperature are not violations of these standards. In
cases where dissolved oxygen levels are within 0.5 mg/l of the limit, no increases in
temperature will be allowed.
SALINITY/MINERAL QUALITY (total dissolved solids, chlorides, and sulfates). Existing
mineral concentrations shall not be altered by municipal, industrial, or instream activities,
or other waste discharges that would interfere with established designated uses. No
increase exceeding 1/5 of naturally-occurring levels shall be permitted.
pH. The pH of a stream or a lake shall not fluctuate in excess of 1.0 pH unit over a period of 24
hours for other than natural causes and shall be within a range of 6.5-9.0.
DISSOLVED OXYGEN. If a surface water body is capable of supporting aquatic life,
dissolved oxygen concentration shall be maintained at a minimum of 5.0 mg/l.
DISSOLVED GASES. Surface water shall be free of nitrogen and other dissolved gases at
levels above 110% saturation when this supersaturation is attributable to municipal,
industrial, or other discharges.
TOTAL RESIDUAL CHLORINE. Total chlorine residual, after the allowances for a mixing
zone as defined herein, shall not exceed 0.1 mg/l.
TOXIC SUBSTANCES.
Toxic substances, including, but not limited to, pesticides, herbicides, heavy metals, and
organic chemicals, shall not be present in Tribal waters above those levels
identified in 40 C.F.R. 131.36 (incorporated herein by reference except as given
in Q. below) as toxic to human, animal, plant, or aquatic life, or to interfere with
the normal propagation, growth, and survival of the aquatic biota, including fish.
There shall be no acute toxicity. At the edge of mixing zones there shall be no
chronic toxicity.
When appropriate, bio-monitoring evaluations following current EPA test methods may be
used to determine compliance with the narrative criteria. These protocols can be
found in EPA's Short Term Methods for Estimating the Chronic Toxicity of
Effluents and Receiving Waters to Freshwater Organisms, EPA/600/4-89/001:
February 1989, or the most current revision thereof. Other references are
Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to
Freshwater and Marine Organisms: EPA/600/4-90/027F, August 1993, or the
most current revision thereof; Post Third Round NPDES Permit Implementation
Strategy, adopted October 1, 1992, or the most current revision thereof; and
Technical Support Document for Water Quality-based Toxics Control,
EPA/505/2-90-001, March 1991 or the most current revision thereof. Should the
White Mountain Apache Tribe need to derive numeric criteria, without actually
conducting toxicity tests, it shall use the AQUIRE (Aquatic Toxicity Information
Retrieval) database and EPA's guidance, Guidelines for Deriving Numerical
National Water Quality Criteria for the Protection of Aquatic Organisms and
their Uses, to calculate any criteria. In the event that sufficient data is not
available to derive numeric criteria following the above guidance, the White
Mountain Apache Tribe may use the results of toxicological studies to calculate
criteria based on the following methods:
Concentrations of non-persistent toxic materials that do not exceed concentrations which are
chronically toxic (as determined from appropriate chronic toxicity data
or- calculated as 10% of LC50 values) to representative, sensitive, aquatic
organisms;
Concentrations of persistent toxic materials that do not bio-accumulate and do not exceed
concentrations which are chronically toxic (as determined from
appropriate chronic toxicity date or calculated as 5% of LC50 values) to
representative, sensitive aquatic organisms; and
Concentrations of toxic materials that bio-accumulate and do not exceed concentrations
which are chronically toxic (as determined from appropriate chronic
toxicity data or calculated as 1% of LC50 values) to representative,
sensitive, aquatic organisms.
Toxic substances in Tribal waters known to be persistent, bio-accumulative, carcinogenic,
and/or synergistic with other waste stream components may be addressed
on a case-by-case basis. If ambient water concentrations of a toxic
substance are found to be in excess of levels protective of aquatic and
human health, per criteria given in 40 CFR 131.36, the edible portion or
whole body of aquatic species of concern shall be analyzed to determine
if concentrations exceed EPA or Federal Food and Drug Administration
action levels. Should concentrations be exceeded, the Tribal
Environmental Planning Office or designee will contact U.S. EPA
Region 9 and, if necessary, issue a fish consumption advisory for the
affected area.
MERCURY AND ARSENIC.
The standard for concentrations of mercury in Tribal waters will be assessed and based on
fish tissue analysis and consumption levels in accordance with current and
accepted protocol of the U. S. Environmental Protection Agency and U.S. Fish
and Wildlife Service. The fish consumption standard for wildlife is based on U.S.
Fish and Wildlife Service criteria and is 0.1 mg/kg (dry weight) of whole fish
samples composited from a minimum of four (4) fish of the same species
gathered from the same sampling location. The fish consumption standard
protective of human health is based on the Federal Food and Drug
Administration (FDA) criteria of 1.0 mg/kg (dry weight) of the edible portion of
fish samples composited from a minimum of four (4) fish of the same species
gathered from the same sampling location. Should results from two separate
sampling events show mercury concentrations greater than the FDA criteria, the
Tribal Environmental Planning Office or designee will contact U.S. EPA Region
9 and, if necessary, issue a fish consumption advisory for the affected area.
The standard for concentrations of arsenic (inorganic) in Tribal waters shall not exceed 5.0
ug/l.
SECTION 3.6 DESIGNATED USES AND SPECIFIC CRITERIA
The Tribe adopts the following water quality standards for the following designated uses for
specific Tribal water bodies:
WARMWATER HABITAT. The following standards are applicable to the protection of
warmwater habitat in all streams and perennial lakes, ponds and some tanks of the
Reservation.
Temperature shall not exceed 32.2 _ C (90 _ F).
Temperature shall not be raised by more than 2.0_ C due to human-caused impacts.
Dissolved oxygen shall not be less than 5.0 mg/L.
pH shall be within the range of 6.5-9.0 with a maximum change of 0.5 due to human-caused
activities.
Total ammonia standards shall be calculated as a function of pH and temperature, in
accordance with the Table for Warmwater Habitat in Appendix A.
Selenium concentrations shall be no more than 2.0 μg/l.
Toxic substances shall not be present in amounts exceeding the levels set forth in Section IV,
subsection P, of this Ordinance.
MARGINAL COLDWATER HABITAT. All standards set forth in Subsection A of this
section apply to the protection of marginal coldwater habitat, with the following
exceptions:
The temperature shall not exceed 25_ C (71.6_ F).
Temperature shall not be raised by more than 2.0_ C due to human-caused impacts.
Dissolved oxygen shall not be less than 6.0 mg/L.
Total ammonia standards shall be calculated as a function of pH and temperature, in
accordance with the Table for Coldwater habitat in Appendix A.
COLDWATER HABITAT, INCLUDING COLDWATER FISH REARING: All standards
set forth in Subsection A of this section apply to the protection of coldwater habitat,
including coldwater fish rearing, with the following exceptions:
The temperature shall not be raised by more than 1.0_ C due to human-caused impacts.
Temperature shall not exceed 23_ C.
Dissolved oxygen shall not be less than 6.0 mg/L.
Total phosphorus (as P) shall be less than 0.1 mg/L.
Total organic carbon shall be less than 7.0 mg/L.
Total ammonia standards shall be calculated as a function of pH and temperature, in
accordance with the Table for Coldwater habitat in Appendix A.
HIGH-QUALITY COLDWATER HABITAT, INCLUDING COLD WATER FISH
HATCHERY. All standards set forth in Subsection A of this section apply to the
protection of high-quality coldwater habitat and fish hatchery use, with the following
exceptions.
Dissolved oxygen shall not be less than 8.0 mg/l for a one-day period and not less than 9.5
mg/L for a seven-day period.
Temperature shall not exceed 20_ C (68_ F).
Weekly average temperatures shall not exceed 17 _ C.
Temperature shall not be raised by more than 1.0_ C due to human-caused impacts.
pH shall be within the range of 6.6 to 8.8.
Total phosphorus (as P) shall be less than 0.1 mg/L.
Total organic carbon shall be less than 7.0 mg/L.
Turbidity shall be less than 10 NTU, except in certain reaches where natural background
conditions prevent attainment of lower turbidity.
Total ammonia standards shall be calculated as a function of pH and temperature, in
accordance with the Table for Coldwater habitat in AppendixA.
IRRIGATION. The following numeric standards are applicable in order to protect irrigation
water use and shall not be exceeded:
Dissolved aluminum 5.0 mg/L
Dissolved boron 0.75 mg/L
Dissolved cadmium 0.01 mg/L
Dissolved chromium 0.10 mg/L*
Dissolved cobalt 0.05 mg/L
Dissolved copper 0.20 mg/L
Dissolved lead 5.0 mg/L
Dissolved molybdenum 0.01 mg/L
Dissolved selenium 0.13 mg/L
Dissolved vanadium 0.1 mg/L
Dissolved zinc 2.0 mg/L *The standards for chromium shall be applied to an analysis which
measures both the trivalent and hexavalent.
DOMESTIC/INDUSTRIAL WATER SUPPLY. The following standards are applicable in
order to protect domestic, municipal and industrial (including hydropower generation)
water supply uses:
The following numeric standards shall not be exceeded:
Dissolved barium 1.0 mg/L
Dissolved cadmium 0.01 mg/L
Dissolved chromium 0.05 mg/L*
Dissolved cyanide 0.2 mg/l
Dissolved lead 0.05 mg/L
Total nitrate 10.0 mg/L
Dissolved selenium 0.05 mg/L
Dissolved silver 0.05 mg/L
Dissolved cyanide 0.2 mg/L
Dissolved uranium 5.0 mg/L
Radium-226 + radium-228 30.0 pCi/L
Tritium 20,000 pCi/L
Gross alpha 15 pCi/L *The standards for chromium shall be applied to an analysis which
measures both the trivalent and hexavalentions.
GROUNDWATER RECHARGE. The above standards for domestic water supply are also
applicable in order to protect areas designated for groundwater recharge.
UNTREATED DRINKING WATER. The above standards for domestic water supply are
also applicable in order to protect untreated drinking water use. Waters designated for
such use will be signed and may be seasonally restricted. In addition, the following
standards apply:
E.coli shall not exceed a geometric mean maximum of 3 colonies/100ml and a single sample
maximum of 4 colonies/100ml.
Turbidity shall not exceed 10 NTU.
The open water shall be free of algae in concentrations causing a nuisance condition or
causing gastrointestinal or skin disorders.
LIVESTOCK AND WILDLIFE. The following standards are applicable to all perennial,
intermittent and ephemeral streams, lakes, wetlands, and other standing tribal waters in
order to protect livestock and wildlife uses:
Dissolved aluminum 5.0 mg/L
Dissolved boron 5.0 mg/L
Dissolved cadmium 0.05 mg/L
Dissolved chromium 1.0 mg/L*
Dissolved cobalt 1.0 mg/L
Dissolved copper 0.5 mg/L
Dissolved lead 0.1 mg/L
Dissolved vanadium 0.1 mg/L
Dissolved zinc 25.0 mg/L
Radium-226 + radium-228 30.0 pCi/L
Total selenium 0.002 mg/L
*The standards for chromium shall be applied to an analysis which measures both the
trivalent and hexavalent ions.
PRIMARY CONTACT. The following standards are applicable in order to protect primary
contact uses. They are applicable to periods when primary contact would reasonably be
anticipated:
Fecal Coliform.
May 1 through September 30. The monthly geometric mean maximum for E. coli shall be a
maximum of 47 colonies/100ml and the single sample maximum shall be
88 colonies/100ml, in accordance with a illness rate of 4 per 1,000
exposures. If single samples are found to exceed the limit, then
compliance with this standard shall be determined based on a minimum
of five samples taken over maximum of thirty days.
October 1 through April 30. Fecal coliform standards for Secondary Contact Recreational
Use apply.
In any single sample, pH shall be within the range of 6.5-9.0.
Turbidity shall not exceed 25 NTU.
The open water shall be free of algae in concentrations causing a nuisance condition or
causing gastrointestinal or skin disorders.
SECONDARY CONTACT RECREATIONAL USE. The following standards are applicable
in order to protect secondary contact (recreation) uses:
In any single sample, pH shall be within the range of 6.5-9.0
Turbidity shall be less than 50 NTU in river systems and 25 NTU in lakes.
The amount of fecal coliform bacteria expressed in colony forming units per 100 ml of water
(cfu/100ml) shall not exceed:
30-day geometric mean, 5 sample minimum 1000
10% of samples of a 30-day period 2000
Single sample maximum 4000
CEREMONIAL PRIMARY CONTACT: The standards for primary contact waters set forth
in subparagraph J shall apply to protect ceremonial uses.
GATHERING OF MEDICINAL OR OTHERWISE CULTURALLY SIGNIFICANT
PLANTS: The standards for Secondary Contact Recreation shall be applied to protect
this use. In addition, native riparian and wetland plants shall not be removed without
Tribal review and authorization, unless they are being gathered by individual tribal
members for private use.
CULTURAL SIGNIFICANCE. Actions that disrespect waters of religious significance are
prohibited. Potential violations of this standard will be reviewed by the Cultural Advisory
Committee. Any actions that may affect these waters must be reviewed and approved
under the Tribal Plan and Project Review Process.
FLOOD CONTROL. This standard is designated for all Tribal wetlands that serve to retain or
absorb flood waters. Any actions that may affect the long-term capacity of these areas to
retain flood waters must be reviewed and approved under the Tribal Plan and Project
Review Process. The water quality, physical, biological and hydrologic characteristics of
wetlands shall be maintained. Wetlands shall not be used in lieu of storm water treatment.
SECTION 3.7 WATER QUALITY SAMPLING AND ANALYSIS
METHODOLOGY. All methods of sample collection, preservation, and analysis used in
determining water quality and maintenance of these standards shall be in accordance with
procedures prescribed by the latest edition of EPA's "Guidelines Establishing Test
Procedures for the Analysis of Pollutants" (40 C.F.R. Part 136) and by approved Tribal
quality assurance plans.
BACTERIOLOGICAL SURVEYS. In conducting such surveys, the monthly geometric
mean shall be used in assessing attainment of standards when a minimum of five samples
is collected in a thirty day period. No single sample shall exceed the upper limit for
bacterial concentration, as set forth in Section V, when less than five samples are
collected in a thirty day period.
SAMPLING PROCEDURES. The following sampling procedures shall be used:
Stream monitoring stations below waste discharges shall be located outside the mixing zone.
Sampling in lakes, including artificial lakes, shall be located where the attainment of a water
quality standard is to be assessed. Water quality measurements shall be taken at
intervals in the water column at a sampling station. For toxic substances and
nutrients, the entire water column shall be monitored. For dissolved oxygen in
stratified lakes, measurements shall be made in the epilimnion after analysis of
stratification. In non-stratified lakes, measurement will be made at intervals
throughout the entire water column.
General assessments of Tribal Water Quality Standards and protection of designated uses
may be conducted by sampling below the confluence of connecting river and
stream tributaries.
SECTION 3.8 DEFINITIONS
The following terms shall have the following definitions when used in this Ordinance:
"ACUTE TOXICITY": Toxicity that exerts short-term lethal impacts on representative
organisms with a duration of exposure generally less than or equal to 48 hours.
Acute toxicity shall be determined in accordance with procedures specified in
EPA/600/4-90/27, "Methods for Measuring the Acute Toxicity of Effluents to
Freshwater and Marine Organisms." Other methods may be used as appropriate
to determine acute effects other than lethality such as, but not limited to,
behavioral changes and immobilization.
"ALGAE": Simple rootless plants that grow in sunlit waters in relative proportion to the
amounts of nutrients available, and which can affect adversely water quality by
lowering the dissolved oxygen in the water.
"ANTI-DEGRADATION": The policy set forth in Section II of this Ordinance whereby
existing uses, the level of water quality necessary to protect those uses, and
general aquatic and riparian ecosystem health is maintained and protected.
"AQUATIC BIOTA": Animal and plant life in the water.
ATTAINABLE USE": Use of surface water meeting water quality and all other
characteristics necessary to support and maintain the use, as specified in Section
VI of this Ordinance, or which would support and maintain the use after the
implementation of standards set forth in this Ordinance.
"AQUATIC LIFE CRITERIA": Pollutant concentrations, levels, or narrative statements,
representing a quality of water that is protective of aquatic life.
"BEST MANAGEMENT PRACTICES": Practices undertaken to control, restrict, and
diminish non point sources of pollution which are determined to be the most
effective and practical means of preventing or reducing pollution of water bodies
from non point sources.
"BIO-ACCUMULATION": The process of a chemical accumulating in a biological food
chain by being passed from one organism to another as the contaminated
organism is preyed upon by another organism.
"BIO-CONCENTRATION": Uptake and retention of a substance by an aquatic organism
from the surrounding water only, through gill membranes or other external body
surfaces.
"CAS NUMBER": Chemical abstract service number; each chemical has a specific
identification number.
"CARCINOGENIC": Cancer causing.
"CEREMONIAL USE": Any ceremonial use of the water in which primary contact with the
water may occur but the probability of ingesting untreated water is low,
including, but not limited to, sweat baths, baptisms and Sunrise ceremonies.
"cfs": Cubic feet per second
"CHRONIC TOXICITY": Toxicity which exerts sub-lethal effects, such as impairment of
growth or reproduction, or which becomes lethal after long term exposure,
generally measured in a 7-day test on representative organisms. Chronic toxicity
shall be determined in accordance with procedures specified in EPA/600/489/001, "Short-term Methods for Estimating the Chronic Toxicity of Effluents
and Receiving Waters to Freshwater Organisms."
"COLDWATER HABITAT": A stream reach, lake, or impoundment where the water
temperature and other characteristics are suitable for the support of coldwater
fish such as trout.
"COLOR": Color as used herein means true color as well as apparent color. True color is
the color of the water from which turbidity has been removed. Apparent color
includes not only the color due to substances in solution (true color), but also that
color due to suspended matter.
"CUMULATIVE": Increasing by successive additions.
"DESIGNATED USES": Those uses set forth in Section V and Appendix Bof this
Ordinance.
"DISSOLVED OXYGEN (DO)": The amount of oxygen dissolved in water or the amount
of oxygen available for biochemical activity in water, commonly expressed as a
concentration in milligrams per liter (mg/l).
"DOMESTIC WATER SUPPLY": Water that only requires disinfection in order to be
usable for drinking or cooking.
"DRINKING WATER": Water that does not require any treatment in order to be usable for
drinking or cooking.
"e": a transcendental constant equal to 2.7182818 which is used as the base of natural
logarithms.
"EFFLUENT": Discharge into surface waters from other than natural sources.
"EPHEMERAL STREAM": A reach of a stream that flows temporarily in direct response
to precipitation or snowmelt, the channel bed of which is above the water table
(examples are washes and arroyos).
"EPILIMNION": The layer of water that overlies the thermocline of a lake and that is
subject to the action of wind.
"EUTROPHICATION": A natural aging process during which a lake, estuary, or bay
evolves into a bog, marsh or wetland and eventually disappears. During the later
stages of eutrophication the waterbody is choked by abundant plant life as the
result of increased amounts of nutritive compounds such as nitrogen and
phosphorus. Human activities, particularly nutrient loading from human or
animal wastes, can accelerate the process.
"EXISTING USES": Those uses actually attained in a surface water body whether or not
they are referred to in this Ordinance.
"FECAL COLIFORM BACTERIA": The portion of the coliform group which is present
in the gut or the feces of warmblooded animals. Fecal coliform bacteria generally
include organisms that are capable of producing gas from lactose broth in a
suitable culture medium within 24 hours at 44.5" O.21C.
" FISH HATCHERY" : Production of fish from eggs.
"FISH REARING" : Raising of fish (trout) from fingerlings.
"FISHERY" : A balanced, diverse community of fishes controlled by the water quality,
quantity, and habitat of a waterbody.
"FLOOD CONTROL": The natural absorption and retention of flood waters by the land
adjacent to a stream.
"FLOW": Natural discharge of a stream, spring or artesian well, and may include artificial
discharge of effluent.
"GATHERING OF MEDICINAL OR OTHERWISE CULTURALLY SIGNIFICANT
PLANTS": Collecting of plants by individual tribal members for private use (in
the home or as a cottage industry). Specific plants may be recognized as
significant by the Tribal Cultural Advisory Committee.
"GEOMETRIC MEAN": A mean calculated by converting all values to logarithms;
averaging the logarithms; and determining the antilogarithm of that average.
"GROUNDWATER": Subsurface water that occurs beneath the water table (level of water
in a well) in soils and geological formations that are fully saturated.
"GROUNDWATER RECHARGE": The replenishment of aquifers by seepage of surface
runoff through sediments and rock formations.
"HARMONIC MEAN FLOW": Is the number of daily flow measurements divided by the
sum of the reciprocals of the flow.
"HIGH QUALITY COLDWATER HABITAT": A stream reach, lake, or impoundment
where the water temperature and other characteristics are suitable for the support
and reproduction of native coldwater fish such as Apache Trout.
"HUMAN HEALTH CRITERIA": Criteria guidance published under section 304 (a) of
the Clean Water Act and periodically updated based on the latest scientific
information on the effect a pollutant concentration has on human health from
consumption of fish and/or ingestion of water.
"INDIGENOUS": Produced, growing, or living naturally in a particular region or
environment according to current or historical records, including oral histories,
compiled by tribal, federal, or state agencies or published scientific literature.
"INDUSTRIAL": Human activities for the production of goods or services.
"INTERMITTENT LAKE": A type of wetland which may contain standing water for
extended periods, but not throughout the year.
"INTERMITTENT STREAM": A stream or reach of a stream that flows only at certain
times of the year when receiving flow from springs, melting snow, or localized
precipitation.
"IRRIGATION USE": The use of water, after diversion, to promote the growth of crops.
"LIVESTOCK AND WILDLIFE USE": The use of water, by ingestion, by domestic
livestock and other vertebrate animals.
"MARGINAL COLDWATER HABITAT": A stream reach, lake, or impoundment where
water temperature and other characteristics are suitable for support of coldwater
fish (such as trout), but where temperature and other characteristics may not
always be suitable for propagation of coldwater fish.
"LC-50": The concentration of a substance that is lethal to 50% of the test organisms within
a defined time period.
"MILLIGRAMS PER LITER (mg/l)": Unit of concentration expressed in terms of the
number of milligrams is contained in a volume of one liter; one milligram per
liter is equivalent to one part per million (ppm) at unit density.
"MIXING ZONE": A three-dimensional zone in which discharged effluent mixes with the
receiving water and within which there is an accepted degradation of water
quality.
"NARRATIVE STANDARDS": A standard or criterion expressed in words rather than
numerically.
"NATURAL BACKGROUND": Levels of pollutants present in ambient water that are
from natural, as opposed to human-induced, sources.
"NON-POINT SOURCE": Pollution that is not from a discernible, single source (e.g.
sediment runoff from land).
"NTU": Nephelometric Turbidity Units; a measure of turbidity in water; see Turbidity.
"NUISANCE CONDITION": A condition involving uncontrolled growth of aquatic plants,
usually caused by excessive nutrients in water.
"NUTRIENT": A chemical element or inorganic compound taken in by green plants and
used in organic synthesis (e.g. phosphorous and nitrogen).
"PATHOGENS": Microorganisms (bacteria, viruses, or parasites) that can cause disease in
humans, animals, and plants, and can be found in sewage, in runoff from farms or
rural areas populated with domestic and/or wild animals, and in water used for
swimming. Fish and shellfish contaminated by pathogens can cause serious
illnesses.
"PERENNIAL STREAM": A stream or reach of a stream that flows continuously
throughout the year, the upper surface of which is generally lower than the water
table of the region adjoining the stream.
"PERSISTENT": Existing continuously or for a longer time than usual.
"pH": The negative logarithm of the effective hydrogen-ion concentration in gram
equivalents per liter.
"PICOCURIE (pCi)": That quantity of radioactive material producing 2.22 nuclear
transformations per minute.
"POINT SOURCE": A discernible, confined and discrete pollutant source but not including
return flows from irrigated agriculture.
"POLLUTANT": (See water contaminant).
"PRIMARY CONTACT": Any recreational or other water use in which there is prolonged
and intimate contact with the waterbody, such as swimming and wading,
involving considerable risk of ingesting water in quantities sufficient to pose a
significant health hazard. Primary contact also means any use of waterbodies for
traditional or ceremonial purposes in which there is intimate contact with the
waterbody that may pose a significant health risk. This contact may include but is
not limited to ingestion or immersion.
"SECONDARY CONTACT RECREATIONAL USE": Any recreational use of the water
in which contact with the water need not occur and in which the probability of
ingesting water is minimal, such as wading and boating.
"SEGMENT": A surface water body that has common hydrologic characteristics or flow
regulation regimes, possesses common natural physical, chemical, and biological
characteristics, and exhibits common reactions to external stresses such as the
discharge of pollutants.
"SENSITIVE SPECIES": A plant, animal, or other living organism designated as sensitive
by the Tribe or for which special management practices or plans have been
developed by the Tribe.
"SUB-SURFACE WATER": Water that stands or flows above ground level.
"RELIGIOUS SIGNIFICANCE": Water bodies that are exceptionally significant as
features in the spiritual landscape of tribal members and require special
protections as a result of that status.
"TDS": Total dissolved solids.
"TECHNOLOGY-BASED CONTROLS": The application of technology-based effluent
limitations as required under Section 301(b) of the Clean Water Act.
"THERMAL STRATIFICATION": Temperature-caused horizontal layers of different
densities produced in a lake.
"TOXIC SUBSTANCES": Those pollutants or combinations of pollutants, which after
discharge and upon exposure, ingestion, inhalation, or assimilation into any
organism, either directly from the environment or indirectly by ingestion through
food chains, will cause death, disease, behavioral abnormalities, cancer, genetic
mutations, physiological malfunctions (including but not limited to malfunctions
in reproduction), or physical deformations in such organisms or their offspring.
"TOXICITY": The degree of danger posed by a substance to animal or plant life; see
"Acute Toxicity" and "Chronic Toxicity."
"TURBIDITY": The degree to which water is cloudy or muddy in physical appearance due
to suspended silt or organic mater.
"USE ATTAINABILITY ANALYSIS": A structured scientific assessment of the factors
affecting attainment of a use for a body of water, which may include physical,
chemical, biological and economic factors as referred to in 40 C.F.R. Section
131.10(g).
"WARMWATER HABITAT": A stream reach, lake, or impoundment where the water
temperature and other characteristics are suitable for the support of warmwater
fish such as, but not limited to, indigenous fishes including Desert-Mountain
Sucker, Sonoran Sucker, Speckled Dace, as well as non-natives such as
Largemouth Bass, Smallmouth Bass, Channel Catfish, and Flathead Catfish.
"WATERS" - WATERS OF THE WHITE MOUNTAIN APACHE TRIBE": means all
lakes, rivers, ponds, streams, springs, sub-surface waters, seeps, wetlands, canals,
irrigation and drainage ditches, and all other surface and ground waters which
arise on, border, transverse or underlie the Fort Apache Reservation or are
otherwise within the jurisdiction of the White Mountain Apache Tribe and which
contain water at some point in the year and are connected to other waters via
surface or below ground flows.
"WATER CONTAMINANT": Any substance that alters the physical, chemical, or
biological qualities of water.
"WATER QUALITY-BASED CONTROLS": Effluent limitations, as provided under
Section 301(b)(1)(C) of the Clean Water Act, that are developed and imposed on
point-source dischargers in order to protect and maintain applicable water quality
standards.
"WETLAND": Any area that is inundated or saturated by surface or groundwater at a
frequency and duration sufficient to support, and that under normal
circumstances does support, a prevalence of vegetation typically adapted for life
in saturated soil conditions, such as swamps, marshes, bogs, and similar areas.
This includes wetlands created, restored or enhanced as part of a mitigation
procedure. This does not include constructed wetlands intentionally constructed
from non-wetland sites outside waters of the Fort Apache Indian Reservation.
"ZONE OF PASSAGE": The portion of the receiving water outside the mixing zone where
water quality is the same as that of the receiving water.